MAHESH MAHATO Vs. SANKAR KUMAR MAHATO

JUDGEMENT

(1.) This revisional application filed by the petitioners accused persons is directed against the order dated 5-12-1998 passed by the learned Sessions Judge, Midnapore whereby the learned Sessions Judge cancelled interim bail granted to the petitioners by the learned SDJM, Jhargram in G. R. Case No. 333/ 92 which was initially started under Sections 147/148/326/307/379, I.P.C. and later on Section 302, I.P.C. was also added thereto as the victim succumbed to the injuries later in the hospital: The incident took place on 30-6-1998. The FIR was lodged on 2-7-1998 at 12.25 p.m. giving explanation for the delay in lodging the FIR. The victim died at the hospital on 2-7-1998 at 6.30 p.m. On the prayer of the 1.0. on 4-7-1998 Section 302, I.P.C. was added. On 10-7-1998 an application for anticipatory bail was filed by the petitioners before the learned Sessions Judge, Midnapore and the learned Sessions Judge granted anticipatory bail to the petitioners on 10-8-1998. In view of the order of anticipatory bail the petitioners surrendered before the learned SDJM, Jhargram on 13-8-1998 and. 17-8-1998 in batches and they were granted interim bail by the learned SDJM, Jharagram. Against the interim bail the de facto complainant moved an application under Section 439 (2), Cr. P.C. before the learned Sessions Judge, Midnapore praying for cancellation of the interim bail. The learned Sessions Judge by his order dated 5-12-1998 cancelled the interim bail granted by the learned Magistrate for reasons recorded in the impugned order and directed the petitioners to surrender before the learned SDJM by 14-2-1998. The present revisional application is directed against the said order of the learned Sessions Judge cancelling the interim bail granted by the learned SDJM.

(2.) The learned Advocate for the petitioner has inter alia submitted that the petitioners were granted anticipatory bail by the learned Sessions Judge after perusing the case diary and he was not justified in cancelling the interim bail granted by the learned SDJM. It has been further submitted that the allegation has been made that the petitioners suppressed the fact that Section 302. I.P.C. was added in the FIR later, but as a matter of fact the petitioners were not aware of that fact and the question suppression does not arise because the anticipatory bail was granted by the learned Sessions Judge after considering the C.D. and after hearing the learned Public Prosecutor. These are however matters relating to the question of merit, but a threshold objection has been raised on behalf of the opposite parties before this Court that a revisional application against the impugned order is not maintainable at all in as much as an order granting, refusing or cancelling bail is an interlocutory order and therefore no revision lies against such order in view of Section 397 (2), Cr. P.C. Both sides have made their submissions before us on this point and the learned Additional Public Prosecutor has also attracted our attention to the recently reported decision of a three-Judge Special Bench of this Court in Dukhi Shyam Benupani v. Parashmal Ram Puria. On the other hand the learned Advocate for the petitioner has referred to an earlier order of this Bench dated 19-11-1998 in CRR 1781 of 1998 in which a revisional application against an order of cancellation of bail was entertained and disposed of by passing some directions. However it is to be mentioned here that the question of maintainability of the revisional application was not at all raised or considered in that matter. But now the question of maintainability has been specifically raised before us in this matter and we have to consider the same. The Special Bench in the said decision considered the matter elaborately and also the provisions of Section 397 (2), Cr. P.C., which says that the powers of revision conferred by subsection (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry trial or other proceeding. In paragraph 12 of the said Special Bench decision it has been observed thus: The order of discharge of an accused is not a judgment or final order as there is no pronouncement of the Court as to the truth or otherwise of the accusation. Thus an order setting aside an order refusing to grant bail or an order cancelling bail granted, cannot be taken as a final order.T For the view that the order granting or refusing to grant bail or cancelling bail at a pre-trial stage is an interlocutory order and not a judgment or final order reference bas been made in paragraph 15 of the said Special Bench decision to certain other judgments mentioned therein holding that such order is not revisable under Section 397, Cr. P.C. In view of the said Special Bench decision we are bound to hold as has been held therein that no revision lies against an order granting, refusing or cancelling bail. In paragraph 19 of the said Special Bench decision it has been observed thus: - If the order is not revisable the Courts inherent power can be used only if it is demonstrated that

(3.) It may be noted here that the Supreme Court in Amar Nath v. The State of Haryana inter alia observed in paragraph 6 that orders summoning witnesses, adjourning cases, passing orders for bail, calling for report and such other steps in aid of pending proceeding, may no doubt amount t6 interlocutory orders against which no revision would lie under Section 397 (2), Cr. P.C. In paragraph 3 of the said decision which is a two Judge Bench decision the Supreme Court also held that if a particular order is expressly barred under Section 397 (2), Cr. P.C. and cannot be the subject of revision by the High Court, then to such a case the provisions of Section 482 would not apply and that it is well settled that the inherent powers of the Court can ordinarily be exercised when there is no express provision on the subject matter, but where there is an express provision, barring a particular remedy the Court cannot resort to the exercise of inherent powers. In a later decision in Madhu Limaya v. State of Maharashtra which is a three Judge Bench decision the Supreme Court however modified its earlier decision to the extent that in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary then nothing contained in Section 397(2) can limit or effect the exercise of the inherent power by the High Court, although such cases would be few and far between and the High Court must exercise the inherent power very sparingly. In Bhola v. State which is a Division Bench decision of the Allahabad High Court it was held that order cancelling bail is an interlocutory order and revision against such order does not lie in view of Section 397 (2), Cr. P.C. It was however indicated in the said decision that the High Court has inherent powers to remedy an abuse of the process of any Court or otherwise to secure the ends of justice as laid down in Section 482, Cr. P.C. in an appropriate case where no alternative remedy is open to the aggrieved party. The Division Bench decision of the Allahabad High Court also interpreted the expression passing orders for bail mentioned by the Supreme Court in Amamath v. State of Haryana (supra) while giving examples of what is an interlocutory order within the meaning of Section 397 (2), Cr. P.C., to include orders granting, rejecting or cancelling bail. In Nilu v. State a Division Bench of the Orissa High Court also held that order cancelling bail is an interlocutory order and revision against such order is not maintainable in view of Section 397 (2), Cr. P.C. It was however held that Section 482, Cr. P.C. might be applied to prevent abuse of the process of the Court despite Section 397 (2), Cr. P.C. but such power has to be exercised sparingly and in exceptional circumstances to prevent abuse of the process of the Court.