Rakesh Kumar Paul S/o Late Ranjit Kumar Paul vs State Of Assam Rep. By The P. P. , Assam

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Gau) 237

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Devashis Baruah, J.
Rakesh Kumar Paul S/o Late Ranjit Kumar Paul - Appellant
Vs.
The State Of Assam Rep. By The P.P., Assam - Respondent
Crl.Pet. No. 24 of 2023
Decided On : 24-03-2023

Advocates:
Advocate Appeared:
For the Appellant : Mr. D Das Sr. Adv, Mr. S. Das
For the Respondent: Mr. M. Phukan

Headnote:
Constitution of India, 1949 – Article, 14, 21 – Criminal Procedure Code, 1973 – Section 482, 167, 309, 436A – Prevention of Corruption Act, 1988 – Section 19 – Prevention of Money Laundering Act, 2002 – Section 45 – Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 37 – Equality before law – Protection of life – Personal Liberty – Learned Senior counsel assisted learned counsel appearing on behalf of petitioner learned Public Prosecutor for State of Assam – Held, Court therefore interferes with order passed by learned Trial Court whereby Bail Application was rejected by learned Special Judge – Court opinion petitioner is entitled to be released in terms with however taking into account objections so raised by Public Prosecutor as well apprehension – Court instead of releasing petitioner on his personal bond with or without sureties is of opinion that petitioner be released subject to conditions as enumerated – Petition stands allowed.

JUDGMENT AND ORDER :

Heard Mr. Diganta Das, the learned Senior counsel assisted by Mr. S. Das, the learned counsel appearing on behalf of the petitioner and Mr. M. Phukan, the learned Public Prosecutor for the State of Assam.

2. The inherent powers of this Court under Section 482 of the Code of Criminal Procedure (for short “the Code”) have been invoked to challenge the order dated 28.12.2022 passed by the learned Special Judge, Assam in Special Case No.5/2021 whereby the Bail Application being Petition No.2569/2022 by the petitioner filed under Section 436A of the Code was rejected. By the instant application, the petitioner has also assailed the order dated 16.11.2022 as well as the order dated 15.12.2022 in Special Case No.05/2021.

3. At the outset, the learned Senior counsel appearing on behalf of the petitioner had submitted that the instant application be treated as an application only as regards the challenge to the order dated 28.12.2022 whereby the application of the petitioner under Section 436A of the Code was rejected. As regards the challenge made to the orders dated 16.11.2022 and 15.12.2022, the learned Senior counsel appearing on behalf of the petitioner submitted that liberty may be given to challenge the said orders separately, if need be, and the instant application as stated be only confined to the challenge to the order dated 28.12.2022. The learned Public Prosecutor has no objection to segregation of the challenge and the liberty sought for thereby limiting the instant application only to the extent of the challenge to the order dated 28.12.2022. The learned Public Prosecutor however submitted that the liberty so given should be subject to maintainability. In view of the said consensus, this Court would limit its adjudication only as regards the order dated 28.12.2022 with an observation that the petitioner would be at liberty to challenge the orders dated 16.11.2022 and 15.12.2022 if so advised, subject to such challenge being otherwise maintainable under law.

4. The order impugned therefore in the instant proceedings dated 28.12.2022 is an order by which the application of the petitioner under Section 436A of the Code was rejected.

5. A challenge was made to the maintainability of the instant application by the State on the ground that as the Bail Application was rejected, the petitioner ought to have approached this Court by way of a separate Bail Application and not by way of a proceedings under Section 482 of the Code. On the other hand, the learned Senior counsel appearing on behalf of the Petitioner submitted that the order of rejection of the bail under Section 436A of the Code. is an intermediate order which is interlocutory in nature. It was submitted that as the discretionary jurisdiction under Section 397 of the Code is to be exercised only in respect of final orders and intermediate orders but taking into account that the provisions of Section 19(3)(c) of the Prevention of Corruption Act, 1988 (for short “the Act of 1988”) there is a restriction on revisional jurisdiction of this Court. Under such circumstances, the inherent jurisdiction under Section 482 of the Cr.P.C. is the only appropriate remedy available to challenge the order dated 28.12.2022 of the Trial Court. The learned Senior counsel further submitted that it is no longer res integra that for invoking the rights under Section 436A of the Code, there is even no requirement for filing a bail Application and as such the rejection of the bail Application by the impugned order has to be looked into in the context of the negation of the rights under Article 21 of the Constitution and this Court in exercise of the powers under Section 482 of the Code can exercise powers for preventing the abuse of the process of the Court and/or to secure the ends of justice. This Court on the question of maintainability of the instant application has given anxious consideration to the matter.

6. The grievance of the petitioner for approaching this Court under