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2015 Supreme(Pat) 448
IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH, J.
Pradeep Kumar Jha – Petitioner
Versus
State of Bihar - Opposite Party
Criminal Miscellaneous No.20447 of 2015
Decided on : 30-06-2015
Advocate Appeared:
For the Petitioners:Mr. Rajiv Roy, Advocate Mr. Manoj Kumar Jha, Advocate Mrs. Sugandha, Advocate
For the State : Mr. Murlidhar, APP
For the Opp.Party no.2 :Mr. Baidyanath Thakur, Advocate Mr. Shankar Thakur, Advocate
The main legal point established in the judgment is that there is no provision for the review of an order granting bail, and after the grant of bail, the court becomes functus officio. Section 362 of the Code bars the court from reviewing its own order on merits.
Headnote:
Code of Criminal Procedure - Bail Cancellation - Section 482 - The court set aside the order of the learned Additional Sessions Judge-IV, Madhubani in Sessions Trial No. 248 of 2014 arising out of Complaint Case No. 321 of 2011, as it amounted to reviewing its earlier order of grant of bail, which is not permissible under Section 362 of the Code.
Fact of the Case:
The case involved an application under section 482 of the Code of Criminal Procedure against the cancellation of bail granted to the petitioners in a case arising from a complaint filed by Sita Raman Jha. The complaint alleged that the petitioners, along with others, were involved in the murder of Sita Raman Jha's wife. However, during the investigation, it was found that the complaint was false and that Sita Raman Jha had an illicit relationship with his sister-in-law and subjected his wife to cruelty.
Finding of the Court:
The court found that the cancellation of bail by the learned Additional Sessions Judge-IV, Madhubani was not permissible as it amounted to reviewing its earlier order of grant of bail, which is not allowed under Section 362 of the Code.
Issues: The main issue was whether the learned Additional Sessions Judge-IV, Madhubani had the authority to cancel the bail granted to the petitioners, and whether the cancellation amounted to a review of its earlier order of grant of bail.
Ratio Decidendi: The court held that there is no express provision for the review of an order granting bail, and after the grant of bail, the learned Sessions Judge had become functus officio. Section 362 of the Code bars the court from reviewing its own order on merits. In the absence of any grounds warranting cancellation of bail, the court found that the cancellation of bail by the learned Additional Sessions Judge-IV, Madhubani was not permissible.
Final Decision: The court set aside the order dated 21.5.2015 passed by the learned Additional Sessions Judge-IV, Madhubani in Sessions Trial No.248 of 2014 arising out of Complaint Case No.321 of 2011, as it amounted to reviewing its earlier order of grant of bail, which is not permissible under Section 362 of the Code.
This application under section 482 of the Code of Criminal Procedure (for short “the Code”) is directed against the order dated 21.1.2015 passed by the learned Additional Sessions Judge-IV, Madhubani in Sessions Trial No.248 of 2014 arising out of Complaint Case No.321 of 2011 whereby the bail already granted to the petitioners has been cancelled in exercise of powers conferred under section 439(2) of the Code.
2. The opposite party no.2 Sita Raman Jha initially lodged an FIR vide Rudrapur P.S. Case No.4 of 2010 dated 12.2.2010 alleging therein that in the night intervening between 11.2.2010 and 12.2.2010 at about 1 a.m. on hearing sound of knocking of the door his wife suspected that some miscreants had entered into the courtyard of the house. His wife woke him up. When he opened the door of his bedroom, he saw the co-villagers Hem Narayan Jha, Amit Kumar Jha and Pradeep Kumar Jha being armed with pistol were seen standing outside his bedroom in the torchlight. When he raised alarm, they ran away towards main door of the house. He chased them shouting “Chor-Chor”. When he reached near the main door, he saw Shambhu Nath Jha, Dilip Jha and 3-4 unknown persons standing there with pistol in their hands. He caught hold of one of the miscreants. His wife and sister-in-law (Bhabhi) also followed him shouting “Chor-Chor”. In the meantime, some one fired causing injury to his wife. When he saw his wife in an injured condition, he released the miscreant whom he had apprehended. Thereafter, the accused persons fled away. He took his injured wife to Jhanjharpur Sub-Divisional Hospital with the help of co-villagers where the doctor declared her brought dead.
3. Thus, it would appear from the contents of the FIR of Rudrapur P.S.Case No.4 of 2010 that apart from the petitioners of the present case, three more persons were named as accused in the FIR. After institution of the FIR, the police took up investigation of the case. While the case was still under investigation, opposite party no.2 Sita Raman Jha filed an application before the Magistrate concerned in the form of protest against the manner in which investigation was being carried on. The protest application filed by opposite party no.2 was kept on record in Rudrapur P.S.Case No.4 of 2010.On completion of investigation, the police submitted final report holding accusation against the named accused persons of the case to be false vide final report no. 6 of 2011 dated 14.02.2011. In the said police report, it is stated that the informant repeatedly changed his version during investigation and the statement of his Bhabhi Smt.Vandana Jha, who was the only other person said to be present at the time of occurrence apart from the deceased does not align with the statement of the informant. According to the investigating officer of the case, it transpired during investigation that opposite party no.2 had illicit relationship with his Bhabhi and he used to subject his wife to mental and physical cruelty. The investigating officer of the case suspected complicity of the informant in the alleged murder of his wife.
4. After receipt of the final report, the learned Additional Chief Judicial Magistrate, Jhanjharpur issued notice to the informant for hearing on the police report submitted under Section 173 of the Code. On 31.05.2011 the learned Additional Chief judicial Magistrate, Jhanjharpur accepted the final report submitted by the police after hearing the informant and examining the materials available on record. He directed the protest petition to be separately registered as a complaint case. Accordingly, Complaint Case No. 321 of 2011 was registered. In the complaint case, the opposite party no.2 was examined on oath and in course of enquiry conducted under section 202 of the Code six other witnesses were also examined in support of the complaint. In the complaint case cognizance of the offence under Section 302 read with 34 of the Indian Penal Code and Section 27 of the Arms Act w
