DAL CHAND Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The question which requires consideration here is whether a second bail application at the instance of a convicted accused in a pending criminal appeal is maintainable.

(2.) The applicant-Dal Chand along with four other accused was convicted under Ss. 148, 307 and 302 read with S. 149, I.P.C. and was sentenced to various terms of imprisonment including imprisonment for life by the judgment and order dated 27-5-1995 of VIth Addl. Sessions Judge, Bijnor in S.T. No. 228 of 1992. He preferred an appeal against his conviction and sentence and also moved an application for bail. The appeal was admitted on 31-5-1995 and the prayer for bail was ordered to be considered after receipt of record. After the trial Court record had been received, the bail application of the applicant was heard by Hon'ble G. Malaviya, J. who rejected the same by the order dated 31-7-1995. The applicant then moved a second application for bail which came up for hearing before Hon'ble G. Malaviya, J. on 8-9-1995 who was of the opinion that in an appeal against conviction no new facts can emerge after rejection of the first bail application and hearing of second bail application would amount to disturbing the finality attached to the order passed while rejecting the first bail application. He, therefore, referred the question whether after having come to a conclusion that there was no ground for granting bail to a convicted accused, can the Court examine the record again and arrive at a different conclusion that the accused be released on bail. That is how the matter has been placed before us for answering the reference.

(3.) The power to grant bail in an appeal by an appellate Court has been conferred by S. 389, Cr. P.C. and it provides that pending any appeal by a convicted person, the appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also if he is under confinement, that he be released on bail. Section 389, Cr. P.C. does not put an embargo on the power of the appellate Court to grant bail to a convicted person if his application for bail has been rejected at an earlier stage. It may be examined whether there is any statutory provision which creates a bar in the hearing of a second bail application. Generally a Court or Tribunal is not entitled to reopen or review its decision finally disposing of a case except for the limited purpose of correcting a clerical or arithmetical error unless such a power is specifically conferred by statute. In Drew v. Willis, 1891 (1) QB 450 Lord Esher, M.R. pointed out that "no Court (and I would add no authority) has . . . . . . . a power of setting aside an order which has been properly made, unless it is given by statute." In Hession v. Jones, 1914 (2) KB 421, it was held that the Court under the statute has no power to review an order deliberately made after argument and to entertain a fresh argument upon it with a view to ultimately confirming or reversing it. It is settled law that a case is not open to appeal unless the statute gives such a right and the power to review must also be given by the Statute. Even a quasi-judicial order once passed and having become final cannot be reviewed by the authority passing that order unless power of review has been specifically conferred. However, this principle applies to such judgment and order by which a case is finally disposed of.