Back
1992 Supreme(Guj) 105
Gujarat High Court
Judgename :R.K.Abichandani
MAKWANA SAMBHUBHAI CHETHABHAI - Appellant
Versus
STATE OF gujarat - Respondent
MISC.CRI.APPLN. 122 of 1992
Decided On : 04/21/1992
Headnote:Criminal Procedure Code, 1973 - Sec. 439(1) - Power of High Court - Exercise of - So long as order of Sessions Court made under governs the field and not set aside - High Court would not have any occasion for invoking its powers under the same provision - Especially that too when order of Sessions Court not even challenged in application.
When an order is already made by the Sessions Court under Section 439, there would be no occasion for the High Court to exercise its powers under the same provision until that order holds good. The accused, who has been refused bail by the Sessions Court, cannot, therefore, approach the High Court for bail without challenging that order. The proper course for him would be to challenge that order and simultaneously pray for bail invoking the power of the High Court under Section 439(1) of the Code.
[Para 3]
An order made by the Sessions Court under Section 439 can be challenged before the High Court invoking its inherent jurisdiction and if the High Court finds that in exercising its powers under Section 439, the Sessions Court has passed an unjust order, the High Court can set it aside and can grant bail in exercise of its own powers under Section 439(1) of the Code. Therefore, this Application can be rejected simply on the ground that, so long as the order of the Sessions Court made under Section 439(1) governs the field, there is no occasion for invoking the power of the High Court under the same provision, especially when the order is not even challenged in this application.
[Para 4]
Criminal Procedure Code, 1973 - Secs. 397(2), 439 & 482 - Order refusing bail by Sessions Court - Revision against - Held, Assuming that revisional powers of High Court were impermissible in view of Sec. 397(2) - High Court can entertain application in exercise of its inherent power under Sec. 482 of the Code.
Even assuming that the revisional powers of the High Court were impermissible, the inherent powers under Section 482 can be invoked. To this extent, it is, therefore, now well settled that, even if a revision application does not lie under Section 397(2) of the Code, that would not preclude the exercise of the inherent powers by the High Court under Section 482 of the Code. Therefore, a judicial order, which cannot be amenable to revisional jurisdiction, would still become subject to the scrutiny of the High Court under Section 482 of the Code in exercise of its inherent powers.
[Para 4]
Criminal Procedure Code, 1973 - Secs. 482 & 439(1) - Inherent powers of High Court - Exercise of - Sessions Court considering relevant aspects of the case and having no reason to disbelieve the statements of eyewitnesses at prima facie stage rejected the bail application of accused involved in a murder case - Held, it was not a fit case in which Court should exercise its inherent powers to enlarge accused on bail - Application rejected.
The learned Sessions Judge has considered these relevant aspects and found that there was no reason to disbelieve Bhupatbhai and Kiritbhai at this prima facie stage. Having regard to the part which is said to have been played by the accused, the seat of injury, the find of the lethal weapon and the version of the persons claiming to be eye-witnesses, it does appear that this is not a fit case in which this Court should exercise its powers under Section 439(1) of enlarging the accused on bail and it appears that the Sessions Court has validly exercised its powers under that provision in rejecting the bail application of the petitioner. This application is, therefore, rejected. Rule discharged.
[Para 8]
( 1 ) RULE. Mr. D. N. Patel, Asstt. Public Prosecutor waives service of Rule.
( 2 ) THIS is an application under Sec. 439 (1) of the Criminal Procedure code by the petitioner who has been accused of the offence of murder. It appears that the applicant had earlier made similar application to the Sessions court, Bhavnagar, and by a reasoned order dated 10/12/1991, the learned Additional Sessions Judge, Bhavnagar had rejected the petitioners application being Miscellaneous Criminal Application No. 819 of 1991. The main accusation levelled against the petitioner is that, on the day of the incident, he had dealt axe blows to Raghav and as a result of the axe blow given to him on his head, Raghav died. According to the version emanating from F. I. R and other police papers, three persons had accosted Raghav who was going on a motor-cycle and way-laid him inflicting injuries with various weapons resulting in his death.
( 3 ) IT was submitted by the learned Counsel appearing for the applicant that this second application under Sec. 439 (1) of the Criminal Procedure Code would directly lie before the High Court because the High Court also has a special power under that provision to release such person on bail. There can be no dispute about the fact that any person accused of an offence and in custody may be directed to be released on bail by the High Court or a Court of Sessions. Therefore, a person accused of an offence may directly apply to the High Court for bail and the High Court in its discretion can entertain such an application, though, ordinarily, an application ought to be made first to the Sessions Court which is a Court subordinate to the High court. Once, however, an application is made to the Sessions Court and is considered on merits culminating in an order made by the Sessions Court, the power, contemplated to be exercised under Sec. 439 (1), is exercised by that Court. When the Sessions Court rejects an application for bail made under Sec. 439 (1) on merits, an order refusing to grant bail would be a judicial order. The Criminal Procedure Code makes elaborate provisions for appeals and revisions for challenging judicial orders. In all the matters where appeals or revisions lie, subject to the conditions prescribed for the exercise of such powers, the High Court can pass appropriate orders exercising powers similar to those of the subordinate Courts while setting aside their orders. Judicial discipline demands that a judicial order made by the subordinate sessions Court having powers concurrent to those of the High Court should be examined when the concurrent power of the High Court is invoked under sec. 439 (1) of the Code. The scheme of the Code clearly indicates that the judicial orders made by the subordinate Courts hold the field until they are set aside by the higher judicial forum. The requirement to challenge the order of the subordinate Court in no way detracts from the power conferred on the High Court under Sec. 439 (1) of the code. Therefore, for effective exercise of the powers of the High Court under sec. 439 (1), the validity of the order of the Sessions Court rejecting bail has to be examined. That order passed in exercise of the power under sec. 439 (1) would, as stated above, govern the field until set aside and substituted by an order made by the High Court under Sec. 439 (1) of the code.
( 4 ) WHEN an application is directly made to the High Court under Sec. 439 and the High Court passes an order refusing the bail, there can be no manner of doubt in holding that no fresh application can be made to the Sessions court. This would be so despite the fact that there is no such prohibition engrafted in Sec. 439 (1) of the Code, the principle being that so long the order of the High Court governs the field, the Sessions Court, which is the court subordinate to it, cannot examine the correctness of that order. And for that matter, once the High Court passes an order under Sec. 439 (1), not onl
