VIJAY NARAIN AND ORS. Vs. STATE

JUDGEMENT

(1.) THE three bail applications set down for orders raise some of the important questions of law regarding bail and need a detailed consideration. In order to appreciate the points under dispute, a little elucidation of facts will be required. Vijay Nand, Prithi Singh and Jowind Lal were arrested on August 8, 1975 for contravention of sub -rule i of Rule 33 of the Defence and Internal Security of India Rules, 1971. They riled applications before the Chief Judicial Magistrate for granting bail but the same were rejected on August 14, 1975. Thereafter they intended to apply for bail before the Sessions Judge but according to them he was out on tour and hence they could not avail of that opportunity. Now they have appeared before the High Court for grant of bail under Section 439 of the Code of Criminal Procedure (hereinafter to be referred as the Code of 1973).

(2.) IN Joginder Singh v. State of Himachal Pradesh Cr.M.P. (M) No. 21 of 1974, decided on 20 -3 -1975 a Division Bench of this Court held that the order granting or refusing bail is an interlocutory order and as such is not revisable under Section 397(2) of the Code of 1973. The Division Bench was dealing with a case of anticipatory bail under Section 438 and held that a direct application could be presented to the High Court because no sooner an application is presented to a Court subordinate to the High Court, the only made of interference would be by way of revision against the interlocutory order which is prohibitive under Section 397(2) of the Code of 1973.

(3.) WHILE dealing with Joginder Singh (supra) the Division Bench was faced with another decision of a Division Bench of this Court Gulam Ali v. State, 1972 H.L.R. 8. That case related to a revision under Section 435 of the Code of Criminal Procedure, 1898 (hereinafter to be referred as the Code of 1898) and a rule of practice was envolved that a party must exhaust his remedies by approaching the District authorities in the first instance before approaching the High Court in an application for revision under Sections 435/438 of the Code of 1898. It was observed in Joginder Singh (supra) that Gulam Ali (supra) may not hold the field in view of the restrictions placed upon the power of revision in the Code of 1973, namely that a revision against interlocutory order is barred under Sub -Section 2 of Section 397 and a second revision to High Court is again prohibitive under Sub -Section 3 of Section 397 of the Code of 1973.