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Gujarat High Court
Judgename :A.N.Divecha, K.R.VYAS
RAJENDRA L.ACHARYA - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL1316 of 1993
Decided On : 04/23/1993
The binding dictum of law pronounced by the Supreme Court in its ruling in the case of Vikramjit Singh (supra) that "no bench can comment on the functioning of a co-ordinate bench of the same Court, much less sit in judgment as an appellate Court over its decision". It would thus mean that re-hearing of a case when it is decided without giving an opportunity of hearing is to be claimed before the same Judge and not before any other Judge. No prejudice could or would be caused by appearing before the same Judge. The reason therefore is quite simple. When the right of hearing is reserved, the learned Judge can be said to have kept his mind open. The decision though termed as final, disposal of the case can be said to be only a tentative decision. It often happens that at the time of preliminary hearing some ad-interim relief is granted and, when the case comes up for final hearing, the very same Judge either vacates or modifies the ad-interim relief granted by him earlier. Let us consider this position in the light of an illustration. An accused pending a criminal trial before the Sessions Court moves it for grant of bail. That application of his is accepted despite stiff resistancee from the prosecution agency. At the instance of the prosecution agency of the operation of the order releasing the accused on bail is stayed by the Sessions Court pending approaching and moving the High Court for cancellation of such bail. When the High Court is moved for the purpose, the High Court might grant ad-interim stay of the order releasing the accused on bail. In that case, the adverse order is passed against the accused without hearing him. He may appear before the High Court and after hearing him the High Court may pass an appropriate order. It is thus clear that an order is often passed affecting the liberty of the accused without hearing him. It will be open to such accused to approach the High Court and claim hearing him with respect to the case on hand. The very same Judge who might have passed an ad-interim order affecting the liberty of the accused can very well modify or vacate his earlier ad-interim order. We do not therefore think that the re-hearing claimed before the same Judge would be an empty formality more particularly when the right of re-hearing is reserved.
( 1 ) THE petitioner has moved this application under Sees. 439 and 482 of the Code of Criminal Procedure, 1973 (the new Cr. P. C for brief ). He has thereby prayed inter alia for his release on bail after quashing and setting aside the order passed by this Court on 30/12/1992 in Misc. Criminal Application No. 4998 of 1992 and for restoration of the order of the Sessions Court at Vadodara passed in Misc. Criminal Application no. 896 of 1992 releasing him on bail.
( 2 ) THIS matter was placed before our learned Brother K. G. Shah, J. for hearing and disposal. It appears that he found it difficult to reconcile the loss of liberty without affording an opportunity of hearing and the ruling of the Supreme Court in the case of Vikramjit Singh v. State of Madhya pradesh, reported in ATR 1992 SC 474 declaring the law to the effect that no Bench can comment on the functioning of a Co-ordinate Bench of the same Court, much less sit in judgment as an appellate Court over its decision. Our learned Brother K. G. Shah, J. has thereupon chosen to refer the following question for decision by a Division Bench of this Court :"whether in the facts and under the circumstances of the case, the order dated 30/12/1992, passed by the learned single Judge of this Court in Misc. Criminal Application No. 4998 of 1992, could be and should be quashed and set aside ?"this Division Bench has been assigned the task of answering the aforesaid question posed by our learned Brother K. G. Shah, J.
( 3 ) BEFORE adverting to answer the aforesaid question, the factual backdrop occasioning the raising of the question will have to be examined. The petitioner in this case appears to have been charged inter alia with commission of raping a girl of about 2 years in age. He was arrested. The necessary charge-sheet against him was filed on completion of investigation charging him with the offences punishable under Secs. 341 and 376 of the Indian Penal Code, 1860 (the I. P. C. for brief ). About three months thereafter, he appears to have moved the Sessions Court at Vadodara for bail. It appears to have been registered as Misc. Criminal Application No. 896 of 1992. It appears to have been assigned to the learned Addl. Sessions Judge for hearing and disposal. The learned Addl. Sessions Judge appears to have released the present petitioner on bail. It appears that the order of the learned additional Sessions Judge of Vadodara granting bail to the present petitioner aggrieved the prosecution agency. The State of Gujarat thereupon preferred misc. Criminal Application No. 4998 of 1992 for cancellation of the bail granted by the lower Court in favour of the present petitioner. It appears to have come up for hearing before our learned Brother B. J. Shethna, J. It appears that on the very first day of hearing our learned Brother Shethna, j. accepted the application for cancellation of bail and ordered re-arrest of the petitioner as the accused. It appears that no notice of hearing was given to the petitioner before accepting the aforesaid application for cancellation of bail preferred by the State of Gujarat. It transpires from the order passed by our learned Brother Shethna, J. that he was conscious that the accused was not before the Court and no opportunity of hearing was given to him and he has therefore in the end observed : if the respondent-accused is aggrieved by this order then he may approach this Court within 15 days from the date of his arrest. It appears that pursuant to this order passed by this Court on 30/12/1992 in Misc. Criminal Application No. 4998 of 1992, the petitioner herein was re-arrested on 9/02/1993. He has thereafter moved this application on 6/04/1993, certainly not within 15 days from the date of his re-arrest. As aforesaid, he prayed inter alia for quashing and setting aside the order passed by this Court on 30th december, 1992 in Misc. Criminal Application No. 4998 of 1992 and for restoration of the order passed by the learned Addl- Sess
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