NAZEEM Vs. ASSTT COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) AT the outset, Mr. Arun Gupte, learned Counsel representing the Department, has challenged the maintainability of this application by pointing out that under the Code of Criminal Procedure, 1973, there is no specific power of review vested in a superior Court and that, consequently, this application itself is legally still-born. Admittedly, the Customs Department had originally filed Criminal Application No. 1100 of 1990 against the order of the learned Additional Sessions Judge, Greater Bombay, dated 10-5-1990. The Department had also filed a companion Criminal Application No. 1101 of 1990 against an order of the same date wherein the order passed by the learned Additional Sessions Judge in favour of the husband had been assailed. The husband's case i. e. , the companion application, has been disposed of by me through judgment and order dated 20-6-1991. Criminal Application No. 1100 of 1990 was heard by me on 3-5-1991 and a detailed order came to be passed on that day, which was done after hearing the parties. A reference to that order will show that Mr. Pathare appearing on behalf of the respondent-wife waived the prayer that her bail amount should be reduced from Rs. 30,00,000/- and he confined his application to the relaxation of the conditions imposed on the wife. Mr. Gupte at the time, in view of this position, was not required to press the application on behalf of the Department regarding its opposition to the reduction of the bail amount because the question did not arise. Mr. Gupte did make his submissions with regard to the conditions imposed on the wife and he, therefore, submitted that once the matter was disposed of on merits through the order dated 3-5-1991, it was wholly impermissible for the party concerned to once again present another application which is for a reconsideration of that order.

(2.) MR. Gupte submitted that in law there is no provision for review of an order of this type and he elaborated by pointing out that the inherent powers of the High Court under Section 482 of the Code of Criminal Procedure are to be used in entirely different circumstances and cannot be equated or confused with the powers of review. It was his submission that drawing on the principles enunciated in the Code of Civil Procedure that there would be a complete bar of a issue estoppel against a litigant who desires to re-agitate substantially the matter under the cloak of an application for review/reconsideration. Mr. Pathare has countered these submissions by pointing out that, in the first instance, this is a fresh application made by him, therefore, the Court is entitled to consider the matter de novo, the only limitation being that unless he is able to justify another application within a period of 2 months the Court may refuse to hear the matter. He has also emphasised the fact that in my earlier order dated 3-5-1991, I have very clearly recorded the fact that Mr. Pathare has waived his right to contest the issue regarding the bail amount. Mr. Pathare has explained that it was the last working day, that the matter could not have been argued in detail at that time, that his client would have had to wait till the Court re-opened after the summer vacation to obtain any orders and since the matter had been pending for a full year since May, 1989, he was expressly instructed not to argue the bail issue and only to canvass the question regarding the other terms. Mr. Pathare has also relied on the fact that a judgment has been delivered by me on 28-6-1991 and that as a consequence of that judgment in the companion matter, he would as of right, be entitled to pray for corresponding orders in this proceeding.

(3.) IT is unnecessary for me to examine in detail the point regarding the Court's powers of review because I have held in no uncertain terms in the earlier judgment and order dated 28-6-1991 that orders pertaining to the grant of bail and incidental terms are essentially interim orders which are always capable of modification. The power of review is one which will pertain to final orders and it is well-settled that even in criminal proceedings the High Court can exercise its inherent powers of review under Section 482 of the Code of Criminal Procedure in the situations that are now well-crystallised. In this case, the record shows that Mr. Pathare did not argue the point regarding reduction of bail and he was justified in not having done so because the Department desired to seriously contest that aspect of the matter for which reason the companion Criminal Application No. 1101 of 1990 had been adjourned till after the vacation on that very day.