Suo Moto vs State Of Bihar - 2021 Supreme(Pat) 987

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Pat) 987

IN THE HIGH COURT OF PATNA
ASHWANI KUMAR SINGH, J.
Suo Moto - Appellant
Versus
The State Of Bihar And Others - Respondent
Criminal Revision No. 2 of 2021
Decided on : 10-02-2021

Advocates:
Advocate Appeared:
For the Appellant : Mr. Ajay Mishra, Adv
For the Respondent: Mr. Rajesh Ranjan, Adv

Headnote:
Code of Criminal Procedure, 1973 – Sections 394 & 401 read with Section 437 – Revisional Powers of the High Court – the Chief Judicial Magistrate, Motihari, granting bail to the O.P. No.2 for the offence under Sections 302 read with 34, 120-B of the I.P.C. and Section 27 of the Arms Act – it is well settled that though the grant of bail involves exercise of discretionary power of the Court, it has to be exercised in a judicious manner and not as a matter of course – when the Magistrate considers the application for bail for offences punishable with death or life imprisonment, ordinarily he is required to refuse bail unless it falls under any of the exceptions such as accused being below 16 years of age, woman, sick or infirm – further, sub-section(4) of the Cr.P.C. requires that where any accused is being released on bail under sub-section(1) or sub-section (2) reasons or special reasons shall have to be recorded by the Magistrate if he uses his discretion to grant bail – one the laws requires recording of the reasons or the special reasons for granting bait by Magistrate, it goes without saying that he will have to justify his order by referring to the grounds on the basis of which he is finding justification for releasing the accused on bail to whom he cannot normally grant bail—the present order granting bail was not only illegal and unjustified but was also perverse—there is no mention in the order that any application for bail was filed on behalf of O,P, No. 2 on 26.11.2020,—The C.J.M. did not deal with the submission that no Criminal Case is pending against the O.P. No. 2—Various other reaons further exist showing, that the order granting bail is not only illegal and unjustified but was also perverse – it is a settled position of law that in a case, if the relevant factors have not been considered and order granting bail is passed on irrelevant considerations, the Superior Court has a duty to set aside such as erroneous order – order granting bail set aside accordingly. (Paras 21, 46, 53, 54, 55 & 58)
2007(4) PLJR 62, AIR 1933 Bombay 492, 2001(2) PLJR SC 205, 2008(3) PLJR 369, (2001)6 SCC 338, 2012(2) PLJR(SC) 136, (1978)1 SCC 118, 2013(3) PLJR SC 140, (2002/3 SCC 598, 2010 (14) SCC 496, AIR 1978 SC 179, AIR 2005 SC 921, AIR 1978 SC 429—Referred.

JUDGMENT :

1. Heard Mr. Rajesh Ranj an, learned counsel for the Opposite Party No. 2 and Mr. Ajay Mishra, learned APP for the State.

2. Vide order dated 07.12.2020, the learned Chief Judicial Magistrate, East Champaran, Motihari, granted bail to the Opposite Party No. 2 in Turkauliya (Banjariya) P.S. Case No. 725 of 2020 registered for the offences punishable under Sections 302 read with 34, 120-B of the Indian Penal Code and Section 27 of the Arms Act.

3. The matter came to the knowledge of this Court in administrative side, pursuant to which, the Court took suo motu cognizance of the aforesaid order dated 07.12.2020 passed by the learned Chief Judicial Magistrate, East Champaran, Motihari in exercise of its powers under Sections 397 and 401 of the Code of Criminal Procedure (for short "Cr.P.C") for the purpose of calling for and examining the records of the proceedings of the aforesaid Turkauliya (Banjariya) PS. Case No. 725 of 2020 and the matter was assigned to this Bench under the orders of Hon'ble the Chief Justice.

4. First of all, it would be apposite to take note of Sections 397 and 401 of the Cr.P.C. which are set out as under:-

"397(1).The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation.- All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398.

401. High Court1 s Powers of revisions.

(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.

(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.

(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.

(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.

(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.

5. It would be apparent from the statutory provision prescribed under Section 397(1) of the Cr.P.C. that the High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior court situated within its jurisdiction for the purposes of satisfying itself as to the correctness, legality or propriety of any order recorded or passed and as to the regularity of any proceedings of such inferior court.

6. The revisional power conferred on the High Court by Section 397 of the Cr.P.C. has been held by a catena of decisions to enable the High Court to consider not