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2007(4) Crimes 213 (SC)
SUPREME COURT OF INDIA
Dr. Arijit pasayat & P. Sathasivam, JJ.
Savitri Goenka — Petitioner
versus
Kusum Lata Damant and Ors. — Respondent
Appeal (crl.) 1508 of 2007
Decided on : 02-11-2007
IMPORTANT POINT
Practice of converting applications filed u\s 482 CrPC to one for bail in terms of S.438 or 439 CrPC has been deprecated by Courts.
Headnote:Code of Criminal Procedure, 1973 – Sections 482, 438 – Conversion of applications filed u\s 482 CrPC to one for bail u\s 438 or 439 CrPC – Validity – Bail Application filed by Respondent 1 on 10-12-2004 – Court directed service on appellant – No service of notice on Appellant – Appellant on learning about proceedings filed an application – Issuance of notice on 14-07-2005 on said application by High Court directing accused to implead appellant – Bail application dismissed by Sessions judge on ground that relief had already been obtained by respondent from High Court – High Court converted application u\s 482 to one u\s 438 CrPC and granted interim protection – Appeal – Held practice of converting applications filed u\s 482 CrPC to one for bail in terms of S.438 or 439 CrPC has not been approved by Court – Again, direction was given for issuance of notice and service on appellant which had not been done by respondent 1 accused – Fact that charge-sheet had been filed or bail had been granted was really of no consequence as relief in regular bail application appeared to have been granted to respondent no.1 in view of interim protection given by High Court to accused by impugned order - Impugned order set aside and matter remanded for fresh consideration. (Paras 4,5,6)
Facts of the case :
1. Bail Application was filed by Respondent1 herein in the instant case. Court directed service on appellant. However there was no service of notice on Appellant. Appellant on learning about proceedings filed an application. High Court issued notice on 14-07-2005 on said application and directed accused to implead appellant. Bail application was dismissed by Sessions judge on ground that relief had already been obtained by respondent from High Court. High Court converted application u\s 482 to one u\s 438 CrPC and granted interim protection.
2. Present appeal has been filed against said order of High Court.
Findings of the Court :
The Court held that practice of converting applications filed u\s 482 CrPC to one for bail in terms of S.438 or 439 CrPC had not been approved by Court. Again, direction was given for issuance of notice and service on appellant which had not been done by respondent1 accused. Fact that charge-sheet had been filed or bail had been granted was really of no consequence because of fact that relief in regular bail application appeared to have been granted to respondent no.1 in view of interim protection given by High Court to accused by impugned order. Impugned order was set aside and matter remanded for fresh consideration.
Result : Appeal allowed.
JUDGMENT
Dr. ARIJIT PASAYAT, J. —
1. Leave granted.
2. Though many points were urged in respect of the appeal, we find that the impugned order of the High Court cannot be maintained on one ground. Though it had issued notice to the appellant, the matter was disposed of without hearing the appellant. It appears that respondent no.1 had filed the bail application, that is, Criminal Misc. Petition No.2945/2004 on 10.12.2004. The court directed service on the appellant. There is no dispute that there was no service of notice on the appellant. According to the appellant, on learning about the proceedings, Criminal Misc. Application No.4653/05 was filed in Criminal Miscellaneous Application No.2945/04. The High Court was pleased to issue notice on 14.7.2005 on the said application and the High Court directed the accused to implead the appellant. Learned Additional Sessions Judge dismissed the bail application of the accused, respondent No.1 on the ground that relief had already been obtained by her from the High Court. On 22.9.2005, without service on the appellant, the High Court converted the application under Section 482 of the Code of Criminal Procedure, 1973 (in short ‘Cr.P.C.’), to one under Section 438 Cr.P.C. and granted interim protection.
3. Learned counsel for the appellant submitted that several facts were suppressed. By giving wrong impression about the factual scenario, the appellant persuaded the High Court to pass the impugned order. In response, learned counsel for the respondent submitted that there is in fact no infirmity in the order. In any event, the charge sheet has been filed and respondent no.1-accused has already been granted regular bail. A copy of the order passed on the bail application has been filed for records.
4. It is to be noted that the practice of converting applications filed under Section 482 Cr.P.C. to one for bail in terms of Section 438 or 439 Cr.P.C. has not been approved by this Court. Additionally, direction was given for issuance of notice and service on the appellant which has not been done by respondent no.1-accused. The fact that the charge-sheet has been filed or bail has been granted is really of no consequence because of the fact that relief in the regular bail application appears to have been granted to respondent no.1 in view of the interim protection given by the High Court to the accused by the impugned order.
5. In view of the aforesaid position, the impugned order is set aside and the matter is remanded for fresh consideration. We make it clear that we have not expressed any opinion on the merits of the case. To avoid unnecessary delay let the parties appear without further notice on 23rd November, 2007, before learned Single Judge. If any party does not appear on that day, needless to say learned Single Judge shall deal with the matter in accordance with law. Learned Chief Justice of the High Court is requested to direct listing of the matter before learned Single Judge according to the roaster.
6. The appeal is allowed to the aforesaid extent.
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