Revision Petition Not Maintainable Against Order Granting Bail

1. Heard.

This order is corrected as per speaking to the minutes of the order dated 25.10.2024

2. In the present matter a challenge is raised to the order

dated 24.04.2024 passed in Criminal Revision Application No. 81 of

2024, setting aside the order dated 15.04.2024, rejecting the police

custody and further quashing and setting the regular bail granted to

the applicant by the Magistrate.

3. The learned Sessions Court further directed the learned

ACJM, Nashik to consider the remand papers afresh in the light of the

observation in revision and pass appropriate order in respect of

remand after hearing both the sides.

4. In the present application, thus, the challenge is raised to

the extent of cancellation of bail in the revision application.

5. I have heard the learned counsel for the respective parties.

6. The learned counsel for the applicant submits that the

order cancelling the bail granted to the applicant is without jurisdiction

as held by the Hon’ble Supreme Court of India in the case of ‘Amar

Nath and Ors v. State of Haryana and Ors.’)

1.

 He further points out that

there was no prayer made in the revision for cancellation of bail and

despite the same, it was cancelled. He, accordingly, submits that the

order is illegal as a liberty was taken away in a wrongful manner.

7. On the other hand, the learned APP submits that this Court

while considering the application of the applicant for grant of

Anticipatory Bail, has observed in Para 10 of the order dated

22.02.2024 passed in Anticipatory Bail Application No. 476 of 2024

that the custodial interrogation is necessary.

1 (1977) AIR SC 2185

8. It is submitted that the said order was confirmed by the

Hon’ble Supreme Court of India by rejecting the SLP. It is thus,

submitted that there is no error committed by the learned trial Court in

passing the judgment and order dated 24.04.2024.

9. The learned APP further points out that the mentioning of

wrong provisions would not vitiate the order if the court is having

power to pass such order under some different provision. She submits

that even though there was no specific provision for cancellation of

bail, the order will not be vitiated.

10. The learned counsel for the informant reiterates the

submission made by the learned APP and submits that in similar facts

and circumstances in a judgment of this Court the Co-ordinate bench

has observed that in such matters the custodial interrogation is

necessary. He further points out that even this Court dealing with the

anticipatory bail filed the present applicant has recorded the same

observations. He, therefore, supports the impugned order and

judgment.

11. In the above backdrop of the submissions made by the

respective parties, I have perused the record and the impugned

judgment.

12. Before dealing with the matter on merit, it is pertinent to

note that it is an admitted fact that the State had moved a separate

application for cancellation of bail granted to the applicant. Thus, at

the first instance, it cannot be said that the revision filed by the State

was for cancellation of bail. Moreover, from the prayer clause in the

revision, it is evident that none of the prayers suggests such relief

sought by the State in the said revision.

13. For the sake of convenience the prayer clauses are

reproduced hereinunder, which read thus:

“a. That R & P be called after its perusal this revision

petition be allowed.

b. Any other and further legal and equitable reliefs,

just and proper, in the ends of justice may kindly be

granted in favour of the applicant.

c. For this act of kindness the applicant shall ever

pray.”

14. From the above referred prayer clauses, it can be said that

there was no prayer clause even for quashing and setting the order

dated 15.04.2024 rejecting the police custody.

15. The clause (a) shows that the prayer was made to call R

and P for perusal and allow the revision and prayer clause (b) shows

that, the legal and equitable reliefs was sought. There was no specific

prayer about quashing of the order rejecting the police custody or for

cancellation of bail.

16. The Hon’ble Supreme Court of India in the case of Amar

Nath (Supra), has observed thus:

“6. Let us now proceed to interpret the provisions of S. 397

against the historical background of these facts. Sub- section

(2) of S. 397 of the 1973 Code may be extracted thus :

“The powers of revision conferred by Sub- section (1)

shall not be exercised in relation to any interlocutory

order passed in any appeal, inquiry, trial or other

proceeding.”

The main question which falls for determination in this

appeal is as to, the what is the connotation of the term

“interlocutory order” as appearing in sub-s. (2) of S. 397

which bars any revision of such an order by the High Court.

The term “interlocutory order” is a term of well-known legal

significance and does not present any serious difficulty. It has

been used in various statutes including the Code of Civil

Procedure, Letters Patent of the High Courts and other like

statutes. In Webster’s New World Dictionary “interlocutory”

has been defined as an order other than final decision.

Decided cases have laid down that interlocutory orders to be

appealable must be those which decide ‘the rights and

liabilities of the parties concerning a particular aspect. It

seems to, us that the term “interlocutory order” in S. 397(2)

of the 1973 Code has been used in a restricted sense and not

in any broad or artistic sense. It merely denotes orders of a

purely interim or temporary nature which do not decide or

touch the important rights, or the liabilities of the parties.

Any order which substantially affects the, right of the

accused, or decides certain rights of the parties cannot be

said to be an interlocutory order so as to bar a revision to the

High Court against that order, because that would be against

the very object which formed the basis for insertion of this

particular provision in S. 397 of the, 1973 Code. Thus, for

instance, orders summoning witnesses, adjourning cases,

passing orders for bail, calling for reports and such other

steps in aid of the pending proceeding, may no doubt

amount to interlocutory orders against which no revision

would lie under S. 397 (2) of the 1973 Code. But orders

which are matters of moment and which affect or adjudicate

the rights of the accused or a particular aspect of the trial

cannot be said to be interlocutory order so as to be outside

the purview of the revisional jurisdiction of the High Court.”

17. From the above referred observations, it is evident that the

term ‘interlocutory order’ used in sub section 2 of Section 397 of Cr.P.C. covers the challenge made to the orders for bail. The Hon’ble Supreme Court of India in clear term has observed that the order of granting bail not amount to interlocutory orders against which a revision under Section 397 (2) of Cr.P.C can be maintained.

18. In the present matter the learned revisional Court without

there being jurisdiction or any prayer for cancellation of bail,

cancelled the bail granted to the applicant. Therefore, there was no

doubt that the order is without jurisdiction and contrary to the law.

19. In that view of the matter, I pass the following order:

ORDER

i) Criminal application is allowed;

ii) The impugned judgment and order dated

24.04.2024 passed by the Additional Sessions Judge,

Nashik in Criminal Application No. 81 of 2024 is

hereby quashed and set aside to the extent

cancelling the bail granted to the applicant under

section 439 (2) of Cr.P.C.

20. Needless to mention herein that this Court has not

considered the challenge as regards the quashing and setting aside the

order dated 15.04.2024, rejecting the police custody.

21. Liberty is granted to the State to pursue the application for

cancellation of bail which is pending before the Judicial Magistrate

First Class, Nashik.

22. The application filed by the respondent no. 2, informant for

cancellation of bail, pending before this Court is hereby permitted to

withdraw with liberty to apply before the trial Court. If such

application is filed, the learned trial Court shall decide the same on its own merit.

(ANIL S. KILOR, J)