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Gujarat High Court
Judgename :D.C.GHEEWALA, N.B.PATEL
RAMESHBHAI LALLUBHAI LUNI - Appellant
Versus
DEVRAJ BHALABHAI - Respondent
CRIMINAL REVISION APPLICATION 99 of 1987
Decided On : 09/21/1987
Held, it is manifest on a plain reading of section 439(2) of the Criminal Procedure Code that the jurisdiction to direct that any person who has been released on bail under Chapter XXXIII of the Code, be arrested and committed to the custody, is vested both in the Court of Sessions and the High Court, even though the bail order may have been made by a Magistrate. Even a bare reading of the provision leaves no doubt as to the fact that the jurisdiction of the Court of Sessions and the High Court is a concurrent jurisdiction and there is nothing in the provision itself even remotely suggesting that the High Court cannot entertain an application for cancellation of bail under section 439(2) of the Criminal Procedure Code directly, that is, without an approach having been first made to the Court of Sessions in that behalf. It is also not brought to our notice that a practice has grown in our High Court whereby an application for cancellation of bail is not directly entertained by the High Court and if somebody makes such an application directly to the High Court he is asked to approach the Sessions Court first or that such an application directly made to the High Court is transmitted down to the concerned Sessions Judge for hearing and disposal. In fact, we were told at the Bar that all along such applications for cancellation of bail are directly entertained by the High Court even though the bail order might have been made by a Judicial Magistrate. (Para 7)
Further held, it is true that section 439(2) of the Criminal Procedure Code invests the High Court and the Court of Sessions with judicial discretion to cancel ban. The question is whether exercise of this discretion embraces or implies any power to restrict the petitioner's choice of forum where the legislature bas in clear and unequivocal terms given him such choice by conferring concurrent jurisdiction on two Courts. We are clearly of the opinion that the discretion to be exercised is only with respect to the question whether the facts and circumstances of the case would justify cancellation of bail which is already granted. The exercise of discretion cannot be extended to the question whether the petitioner should have approached the Sessions Court first or should be allowed to approach High Court first. (Para 12)
(Dissented from Himachal Pradesh High Court in Sher Singh's case; 1972 Cr. L.J. 1607)
Result-
Order accordingly.
( 1 ) THIS reference arises out of Criminal Revision Application No. 99 of 1987 filed by the petitioner praying that the orders dated 28 and 9-3-1987 passed by the learned Judicial Magistrate First Class Mehsana may be quashed and set aside and the bail granted by the learned Magistrate to the opponents Nos. 1 to 4 may be cancelled and the learned Magistrate may also be directed to grant remand of the opponents Nos. 1 to 4 to police custody. The facts and the circumstances leading to the reference may first be briefly set out. The petitioner is the husband of one Bai Kaliben and is a resident of village Khadalpur in Mehsana taluka of Mehsana district. Bai Kaliben is a relative of the opponent No. 1. It is alleged that on 18-2-1987 at about 11. 30 p. m. the opponents Nos. 1 to 4 accompanied by several other persons went to village Khadalrur and forcibly abducted the petitioners wife Kaliben. Information of this offence was lodged at Laghnej Police Station on or about 18-2-1987 and ultimately the opponent No. 1 was arrested on 20-2-1987 and the other three opponents were also arrested on 8 The opponent No. 1 was taken on police remand on 21-2-1987 for two days and was again produced before the learned Magistrate on 23-2-1987 with a request by the P. S. I. Laghnej to grant further remand of the opponent No. 1 to police custody for two more days. However the learned Magistrate by his order dated 23-2-1987 rejected the request of the police for taking the opponent No. 1 on further remand and on the same day passed an order to release the opponent No. 1 on bail. One of the orders which the petitioner wants to be set aside is this order dated 23-2-1987 whereby the request of the police to remand the opponent No. 1 to police custody for two more days was rejected and the opponent No. 1 was granted bail. The opponents Nos. 2 3 and 4 who were subsequently arrested on 8-3-1987 were produced before the learned Magistrate on 9-3-1987 and at that time the police asked for remanding the said opponents also to police custody for a period of seven days. However by his order dated 9 the learned Magistrate rejected the said request of the police and in respect of these opponents also he passed a bail order on that day. It is this order dated 9-3-1987 which is also challenged by the petitioner. The petitioner has prayed that the orders granting bail to the four opponents be cancelled and he has further prayed that the learned Magistrate may be directed to remand all the four opponents to police custody.
( 2 ) SO far as the request for cancellation of the bail order is concerned it is obviously one made under Sec. 439 (2) of the Criminal Procedure Code. It may be noted here that the petitioner did not approach the Sessions Judge Mehsana for cancellation of bail before approaching the High Court by the present petition.
( 3 ) IT appears that when the matter came up for hearing before the learned single Judge of this Court (I. C. Bhatt J.) a question was raised whether the application for cancellation of bail which was made directly to the High Court without first approaching the Sessions Judge Mehsana was maintainable or not. Observing that a learned Judge of this Court (R. A. Mehta J.) has held in the case of Ramchandra Kashiram Vora v. State of Gujarat (28 (1) GLR 85) that normally the party should approach the Sessions Court first and then come to the High Court if he is aggrieved by the order of the Sessions Court the learned Judge (I. C. Bhatt J ) felt that the question arising required to be preferred to the Division Bench and ordered the matter to be placed before the Honourable the Chief Justice for making suitable orders and that having been done Honourable the Chief Justice has referred the aforesaid question to this Division Bench.
( 4 ) WHILE making reference to the Division Bench the learned Judge has stated that the question to be placed for decision by the Division Bench is whether the party should first be relegated t
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