1998 Supreme(Cal) 215

High Court Of Calcutta
P. S. MISHRA, S. B. SINHA, VINOD KUMAR GUPTA
DUKHI SHYAM BENUPANI - Appellant
Versus
PARASMAL RAMPURIA - Respondent
CRIMINAL MISCELLANEOUS 666  Of  1997
Decided On : 05/13/1998

An order granting or refusing to grant bail at a pre-trial stage is an interlocutory order and in a case of cancellation of bail at a pre-trial stage, the order is interlocutory and not a judgment or a final order.

Headnote:

FOREIGN EXCHANGE REGULATION ACT - BAIL - JURISDICTION - REVISION - INHERENT POWERS - APPLICABILITY - INTERLOCUTORY ORDERS - INTERPRETATION - FINAL ORDERS - DISTINCTION - SCOPE OF REVISION - SCOPE OF INHERENT POWERS - ABUSE OF PROCESS - ENDS OF JUSTICE - INTERPRETATION OF RULES - MANDATORY PROVISIONS - DEPARTURE - PERMISSIBILITY - AUXILLIARY VERB 'SHALL' - CONSTRUCTION.

Fact of the Case:

The opposite party was arrested for offences allegedly committed by him involving about Rs. 53 crores during the period March to October, 1995. He was remanded to custody by the Chief Metropolitan Magistrate, Calcutta. He filed an application for bail before the Chief Judge, City Sessions Court at Calcutta, which was allowed. The petitioner filed an application under Section 439 (2) of the Code of Criminal Procedure before the High Court seeking direction that the opposite party who had been released on bail be arrested and committed to custody. The Division Bench of the Court set aside the order of bail and directed the learned City Sessions Judge to hear the matter afresh. The City Sessions Judge disposed of the matter as directed by the Division Bench of the Court and the application for cancellation of bail holding that the amount involved in this case is definitely a high one, rather sky scrapping. The opposite party moved the High Court and labelled his application as one under section 397/401 of the Code of Criminal procedure read with Section 482. The single Judge set aside the order of the City Sessions Judge and directed for grant of bail to the opposite party.

Finding of the Court:

The Court held that the order passed by the learned single Judge after setting aside the order of the City Sessions Judge, rejecting the application for bail and/or cancelling the bail which he had earlier granted after hearing afresh as directed by this court, is an order granting bail to the opposite party and thus is an order falling under Section 439 of the Code and therefore the instant application under Section 439 (2) is maintainable. The nature of the order of the learned single Judge being one granting bail to the opposite party, it is difficult to accept the same as a final order under Section 362 of the Code and to exclude the Court's inherent power to review the case.

Issues: 1. Whether a single Bench could exercise revisional power under Section 397/401 of the Code of Criminal Procedure to consider bail when offences alleged to have been committed under the Foreign exchange Requisition Act, 1973 and/ or such matters which fall under Rule 9 of the Rules of the High Court ? 2. Whether the Court of revision, independent of Section 439 of the Code of Criminal Procedure could decide the matter; 3. Whether the use of Auxilliary verb 'shall' in the aforementioned rule has made the rule mandatory and the proceedings accordingly must always be entertained by the Division Bench of the single Judge, as the case may be and departure in no case, is permissible; 4. Whether there is a need to re-examine and if necessary, to amend the said rule to meet the exigencies ?

Ratio Decidendi: 1. The order of the learned single judge by which he has set aside the order of the City Sessions Judge and as a consequence allowed the application for bail in respect of which application the Division Bench of this court had given direction to the City Sessions judge to hear afresh, in our view, is not a judgment or final order disposing of a case and this Court's inherent power as preserved in Section 482 of the Code can be invoked to review the same. 2. The order of the City Sessions Judge was an order cancelling the bail and whether the order cancelling the bail is a final order and although an intermediate order is not interlocutory but has some finality, in some details. 3. The order of bail to the accused-opposite party was already set aside by the Division bench of the Court. There was no bail, thus, which was required to be cancelled. The City Sessions Judge while disposing of the bail application, said,". . . . . . . . . Therefore, on consideration of the circumstances, the bail order which has already been set aside by the Hon'ble High Court is not being revived and the same is being cancelled." it was, out and out, as we have said earlier, a case of refusal of bail by the city Sessions Judge. 4. The view that order granting or refusing to grant bail at a pre-trial stage is an interlocutory order in a case of cancellation of bail at a pre-trial stage, the order is interlocutory and not a judgment or a final order.

Final Decision: The Court held that the order passed by the learned single Judge after setting aside the order of the City Sessions Judge, rejecting the application for bail and/or cancelling the bail which he had earlier granted after hearing afresh as directed by this court, is an order granting bail to the opposite party and thus is an order falling under Section 439 of the Code and therefore the instant application under Section 439 (2) is maintainable. The nature of the order of the learned single Judge being one granting bail to the opposite party, it is difficult to accept the same as a final order under Section 362 of the Code and to exclude the Court's inherent power to review the case.