Mohit Kumar Goyal vs State Of U.P. And Another
2023 Latest Caselaw 22667 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 



 
Neutral Citation No. - 2023:AHC:169480
 
A.F.R.
 
Reserved on 8th August, 2023
 
Delivered on 22nd August, 2023
 
Court No. - 82
 
Case :- CRIMINAL REVISION No. - 301 of 2023
 
Revisionist :- Mohit Kumar Goyal
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Prashant Vyas,Kanchan Sharma,Nitin Kumar Agrawal
 
Counsel for Opposite Party :- G.A.,Saumitra Dwivedi
 
Hon'ble Shiv Shanker Prasad,J.

1. Heard Sri Nitin Kumar Agarwal, Advocate holding the brief of Ms. Kanchan Sharma, Advocate, Sri Prashant Vyas, learned counsel for the revisionist, Sri Vinay Saran, learned Senior Counsel assisted by Sri Pradeep Kumar Mishra, learned counsel for the opposite party no. 2 and Mr. Ratnesh Nandan Singh, learned A.G.A.-I for the State.

2. By means of the present criminal revision, the revisionist is challenging the order dated 03.11.2022 passed by Second Additional Chief Judicial Magistrate, Gautam Budh Nagar in Case Crime No. 106 of 2021, under Sections 406, 420, 467, 468, 471 & 120-B I.P.C., Police Station Surajpur, District Gautam Budh Nagar, whereby the learned Magistrate has accepted the remand and issued "B" warrant as also directed the accused-revisionist to appear in jail.

FACTS AS CROPPED UP FROM THE RECORDS

3. A first information report has been lodged by the informant, namely, Devendra Bansal on 09.02.2021 at 0634 hrs. against the revisionist and 5 others, which was registered as Case Crime No-0106 of 2021, under Sections 420, 467, 468, 471, 406 & 120-B IPC, Police Station- Surajpur, District-Central Commissionerate Gautam Budh Nagar for the alleged incident in which no date and time of the incident were .M. 4thmentioned. In the first information report, it has been alleged that the revisionist, his wife Dharna Garg in collusion with four others have taken total Rs. 1.96 crores from the informant and his wife for business by making a forged company and they have not returned the same to the informant and cheated them also.

4. The revisionist is also accused in FIR No. 838 of 2021, Police Station-Noida Sector-58, dated 20th September, 2021. Both the aforesaid cases have been investigated by Special Investigating Team (SIT) headed by Inspector Ravinder Gautam.

5. In Case Crime No. 0106 of 2021 dated 9th February, 2021, under Sections 420, 467, 468, 471, 406 & 120-B IPC, Police Station- Surajpur, District-Central Commissionerate Gautam Budh Nagar, the revisionist has moved an application under Section 438 Cr.P.C. (Transit Anticipatory Bail) before the Rohini Courts, Delhi, which has been granted vide order dated 2nd November, 2022, a copy of which has been enclosed as Annexure-8 to the affidavit accompanying the present criminal revision.

6. On 3rd November, 2022, the revisionist was produced before the Additional Chief Judicial Magistrate-II, Gautam Budh Nagar whereby his oral prayer that since he has already been granted transit anticipatory bail by the Additional Sessions Judge, Rohini Court, Delhi for a period of eight days, he may be granted some protection from that Court for the said period, has been rejected the concerned Magistrate after observing that the Rohini Court in granting transit anticipatory bail to the revisionist has no jurisdiction. It is against this order that the present revision has been filed.

7. It is pertinent to mention here that the revisionist had approached the Hon'ble Apex Court by filing Writ Petition (Crl) No. 505 of 2022 (Mohit Kumar Goyal vs. State of U.P. and others), where he had challenged the order dated 03.11.2022 and the Apex Court had directed to avail the remedies in accordance with law.

CASE OF THE REVISIONIST

8. The revisionist Mohit Kumar Goyal is Ex-Director of M/s. Family of Dry Fruits India Private Limited, having its office at U-25/A, DLF Phase-3, Near Pink Town, House Market, Sector-24, Gurugram (Haryana). The revisionist had never formed the company namely M/s. R.D. Dry Fruits Pvt. Ltd. and M/s. Seth Ji Dry Fruits Pvt. Ltd. The revisionist is not the director/share holder/beneficiary or signatory in M/s. R.D. Dry Fruits Pvt. Ltd. and M/s. Seth Ji Dry Fruits Pvt. Ltd. The revisionist' company and Shree Shyam Trading Company are distinct company and Proprietor of Shree Shyam Trading Co. is nowhere concerned with the affairs of M/s. Family of Dry Fruits India Pvt. Ltd. The revisionist had not transferred any fund in their own personal account nor the single amount had been transferred in the account of M/s. Family of Dry Fruits India Pvt. Ltd. by the informant. It is merely an allegation that he had transferred the same. The real fact is that the revisionist is being cheated by the informant, regarding which a first information report of Case Crime No. 1851 of 2019, under Sections 406, 420, 467, 468, 471, 384, 388, 389, 504, 506 & 120-B IPC, Police Station-Surajpur, District-Gautam Budh Nagar was lodged against the informant and others, but no action had been taken by the police nor the statement of the revisionist is recorded till date. The intention of the informant can be seen that when he was not able to achieve his illegal goals then he lodged the present first information report after the delay of about 1 year and 7 months, for which no plausible explanation was given by the respondent. The office of the M/s. Family of Dry Fruits India Pvt. Ltd. is situated at Noida and Ghaziabad.

9. SUBMISSION OF THE LEARNED COUNSEL FOR THE REVISIONIST

(I) In the first information report being Case Crime No. 106 of 2021, not even a single word has been mentioned that the supply was made at Noida. When as a matter of fact all the supplies was made in Gurugram/Gurgaon. As such the U.P. Police has no jurisdiction to lodge the present first information report at Noida.

(II) The revisionist had filed a case against the informant namely Devendra Bansal, which was registered as Case Crime No. 1851 of 2019, under Sections 406, 420, 467, 468, 471, 384, 388, 389, 504, 506 & 120-B IPC, Police Station-Surajpur, District-Gautam Budh Nagar. The said first information report was registered in compliance of the order of the learned Civil Judge (S.D.) FTC, Gautam Budh Nagar passed in the application u/s. 156(3) Cr.PC. The informant is being arrayed as accused no.9 in the first information report of Case Crime No. 1851 of 2019, under Sections 406, 420, 467, 468, 471, 384, 388, 389, 504, 506 & 120-B IPC, Police Station-Surajpur, District-Gautam Budh Nagar. He had taken the advantage of the dispute between M/s. Family of Dry Fruits and M/s. Shree Shyam Trading Company. The informant in order to gain illegal benefits had made Aadhar Card and Driving License in the name of Pradeep Singh Nirwan, which are the forged one. The informant was arrested by the police, but was released on same date on the basis of his ill-health. The revisionist had approached the S.S.P., Gautam Budh Nagar, who had assured that the informant will be arrested soon, but he was not arrested. In fact, he was released by the Investigating Officer. On 18.03.2020 a complaint was made by the revisionist before the ACJM-II, Gautam Budh Nagar bearing Complaint Case No. 147 of 2020 (State vs. Devendra and others). On the basis of the aforesaid complaint, the Additional Chief Judicial Magistrate-ll, Gautam Budh Nagar vide order dated 17.07.2020, after considering the entire materials on record had directed the Commissioner of Police, Gautam Budh Nagar to look into the matter and inquire the same and also directed SHO, P.S-Surajpur, to arrest the informant within one month and to produce the same before him. Till date, the informant is not yet arrested nor the order dated 17.07.2020 of the 2nd ACJM, Gautam Budh Nagar is complied. In fact, the police authorities are demanding Rs. 5 lakhs from the revisionist in order to get the matter investigated.

(III) The present case is a counter blast of the earlier case lodged by the revisionist against the informant as Case Crime No. 1851 of 2019, under Sections 406, 420, 467, 468, 471, 384, 388, 389, 504, 506 & 120-B IPC, Police Station- Surajpur, District-Gautam Budh Nagar.

(IV) The dispute between both the parties is civil in nature than the criminal, therefore, the informant should be asked to avail appropriate remedy as may be permissible under law before appropriate court of law/forum, which he has not opted.

(V) The company in the name and style of M/s. Family of Dry Fruits India Pvt. Ltd. has not been made an accused in the present criminal proceedings, which is mandatory as per law. The present case comes under the ambit of the Sales of Goods Act, 1930 and Section 55 of the said Act will apply in the facts of the present case. There is no exchange of sale of goods nor any goods had been sold by the parties. The revisionist had no concern with any of the firm and company mentioned in the first information report except M/s. Family of Dry Fruits, which is still in operation and the revisionist is the Ex-Director of the said company.

(VI) In paragraph no. 37, the revisionist has detailed as many as 33 criminal cases, which have been initiated against him and he has also satisfactorily explained about the said cases.

(VII) The concerned Magistrate has erred in entertaining the transit anticipatory bail and had exceeded his jurisdiction by observing that the Rohini Court, Delhi has no jurisdiction while passing the impugned order dated 3rd November, 2022. In the similar matter, this Court in Criminal Misc. Anticipatory Bail Application No. 5284 of 2022 (Amita Garg and 6 others vs. State of U.P. and 3 others) vide order dated 16.07.2022 had allowed the petition. In the present case, there is a violation of fundamental rights of Article 21 of the Constitution of India. The revisionist is in illegal custody and the same is evident from the order dated 03.11.2022. At the time of hearing in the Supreme Court, the Court had orally directed the revisionist to file the case before proper forum as the custody is illegal and the Hon'ble Supreme Court is not the correct forum.

(VIII) The informant had not mentioned in what manner, the revisionist is involved in the aforesaid firm and company neither any specific averment had been made that the revisionist is responsible for the day-to-day affairs of the company, which is necessary for the adjudication of the case. The revisionist is not the beneficiary/share holder/signatory in any of the company mentioned in the first information report except M/s. Family of Dry Fruits India Pvt. Ltd.

(IX) The revisionist had not prepared any forged document nor anything incriminating has been recovered from his possession or his pointing out so as to connect him with the present criminal case.

(X) The revisionist has been implicated in the present case due to the fact that he had business rivalry with one Devendra Bansal against whom, the revisionist had lodged the first information report but since the Police in connivance with Devendra Bansal had implicated the revisionist in the present case.

(XI) No offence is made out against the revisionists under Section 406 IPC as there is no entrustment of any property nor the revisionist had any dominion property nor the revisionist had dishonestly misappropriated or converted that property to his own use or disposed of that property in violation of any law prescribed. Further no offence is made out against the revisionists under Section 420 IPC as there is no intention of cheating from inception. Again, no offence is made out against the revisionist under Sections 467, 468, 471 IPC as the revisionist has not fabricated or made any document. Further no offence is made out against the revisionist under Section 506 IPC as the revisionist had not threatened or intimidated by any means. Lastly, no offence is made out against the revisionists under Section 120-B IPC as no conspiracy had been hatched by the revisionists nor they had entered into any type of conspiracy.

(XII) Regarding the illegal custody of the accused-revisionist, the judgment and order of this Court dated 18.06.1992, a copy of which has been enclosed as Annexure No. 11 to the affidavit accompanying the present criminal revision, has been referred to on behalf of the revisionist.

(XIII) As per Section 15 of the Code of Criminal Procedure, the Additional Chief Judicial Magistrate-II, Gautam Budh Nagar has no power to pass the order impugned, even when an order granting transit anticipatory bail to the revisionist has been passed by the Additional Sessions Judge, Rohini Court, Delhi dated 2nd November, 2023. The concerned Magistrate has misread and ignored the hierarchy while passing the order impugned.

On the cumulative strength of the aforesaid, learned counsel for the revisionist submits that since the revisionist has no motive whatsoever to commit the aforesaid offence and he is totally innocent of the charges levelled against him in the first information report, this Court while exercising its powers under Section 397/401 Cr.P.C. may quash the impugned order dated 03.11.2022 passed by the Second Additional Chief Judicial Magistrate, Gautam Budh Nagar in Case Crime No.-106 of 2021, under Sections 406, 420, 467, 468, 471 & 120-B IPC, Police Station-Surajpur, District-Gautam Budh Nagar.

10. Per contra, before considering the case on merit, Mr. Vinay Saran, learned Senior Advocate appearing on behalf of opposite party no.2 and the learned A.G.A. have made preliminary objection to the maintainability of the present instant criminal revision by contending that since the order impugned is an interim/interlocutory order, the present revision under Section 397/401 Cr.P.C. is not maintainable. On merits of the order impugned, they have also have opposed all the submissions made by the learned counsel for the revisionist by contending that there is no illegality or infirmity in the impugned order passed by the concerned Magistrate issuing "B" warrant and directing the accused-revisionist to appear before the Court of Additional Chief Judicial Magistrate-II, Noida, District Gautam Budh Nagar.

11. Mr. Saran also contends that the anticipatory bail would not lie and would not be maintainable if a person is already arrested and is in custody of police or judicial custody in relation to another criminal case, which may be for similar offence or for different offences. In support of his plea, Mr. Saran has referred to the judgment of a learned Single Judge of the Rajasthan High Court dated 25th October, 2021 passed in S.B. Criminal Misc. Bail Application No. 9155 of 2019 (Sunil Kallani Vs. State of Rajasthan Through Public Prosecutor). Mr. Saran has also relied upon the judgment of a learned Single Judge of this Court dated 9th December, 2022 passed in Criminal Misc. Anticipatory Bail Application Under Section 438 Cr.P.C. No.-4633 of 2022 (Rajesh Kumar Sharma Vs. Central Bureau of Investigation).

12. This Court has considered the submissions made by the learned counsel for the parties and has gone through the records of the present criminal revision including the order impugned passed by the concerned Magistrate.

13. Firstly, this Court may record that all the submissions made by the learned counsel for the revisionist qua the legality, illegality or otherwise of the present criminal proceedings which have been initiated by opposite party no.2 against the revisionist cannot be examined by this Court while exercising its revisional power under Section 397/401 of Code of Criminal Procedure. The said submissions can only be examined by the Bench exercising its extraordinary power under Sections 482 Cr.P.C. This Court can only examine the correctness, legality, illegality or otherwise of the order which is under challenge in the present criminal revision.

14. The Apex Court in the case of Amit Kapoor Vs. Ramesh Chander & Another reported in (2012) 9 SCC 460 has opined that the jurisdiction of the court under Section 397 Cr.P.C. can be exercised so as to examine the correctness, legality or propriety of an order passed by the trial court or the inferior court, as the case may be, whereas Section 482 Cr.P.C. confers a very wide power on the Court to do justice and to ensure that the process of the court is not permitted to be abused.

15. Paragraph nos. 12, 13,18, 20 and 21 of the judgment in the case of Amit Kapoor (Supra), which are relevant on the aforesaid issue, are being quoted herein below:

"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There.M. 4th has to be a well- founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.

13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the Cr.P.C.

....

18. It may also be noticed that the revisional jurisdiction exercised by the High Court is in a way final and no inter court remedy is available in such cases. Of course, it may be subject to jurisdiction of this court under Article of the Constitution of India. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the court. Merely an apprehension or suspicion of the same would not be a sufficient ground for interference in such cases.

....

20. The jurisdiction of the Court under Section 397 can be exercised so as to examine the correctness, legality or proprietary of an order passed by the trial court or the inferior court, as the case may be. Though the section does not specifically use the expression 'prevent abuse of process of any court or otherwise to secure the ends of justice', the jurisdiction under Section 397 is a very limited one. The legality, proprietary or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand, Section 482 is based upon the maxim quando lex liquid alicuiconcedit, conceder videtur id quo res ipsa esse non protest, i.e., when the law gives anything to anyone, it also gives all those things without which the thing itself would be unavoidable. The Section confers very wide power on the Court to do justice and to ensure that the process of the Court is not permitted to be abused.

21. It may be somewhat necessary to have a comparative examination of the powers exercisable by the Court under these two provisions. There may be some overlapping between these two powers because both are aimed at securing the ends of justice and both have an element of discretion. But, at the same time, inherent power under Section 482 of the Code being an extraordinary and residuary power, it is inapplicable in regard to matters which are specifically provided for under other provisions of the Code. To put it simply, normally the court may not invoke its power under Section 482 of the Code where a party could have availed of the remedy available under Section 397 of the Code itself. The inherent powers under Section 482 of the Code are of a wide magnitude and are not as limited as the power under Section 397. Section 482 can be invoked where the order in question is neither an interlocutory order within the meaning of Section 397 (2) nor a final order in the strict sense. Reference in this regard can be made to Raj Kapoor & Ors. Vs. State of Punjab & Ors. [AIR 1980 SC 258 : (1980) 1 SCC 43]}. In this very case, this Court has observed that inherent power under Section 482 may not be exercised if the bar under Sections 397 (2) and 397 (3) applies, except in extraordinary situations, to prevent abuse of the process of the Court. This itself shows the fine distinction between the powers exercisable by the Court under these two provisions. In this very case, the Court also considered as to whether the inherent powers of the High Court under Section 482 stand repelled when the revisional power under Section 397 overlaps. Rejecting the argument, the Court said that the opening words of Section 482 contradict this contention because nothing in the Code, not even Section 397, can affect the amplitude of the inherent powers preserved in so many terms by the language of Section 482. There is no total ban on the exercise of inherent powers where abuse of the process of the Court or any other extraordinary situation invites the court's jurisdiction. The limitation is self-restraint, nothing more. The distinction between a final and interlocutory order is well known in law. The orders which will be free from the bar of Section 397 (2) would be the orders which are not purely interlocutory but, at the same time, are less than a final disposal. They should be the orders which do determine some right and still are not finally rendering the Court functus officio of the lis. The provisions of Section 482 are pervasive. It should not subvert legal interdicts written into the same Code but, however, inherent powers of the Court unquestionably have to be read and construed as free of restriction."

16. Before coming to the merits of the order impugned, it would be worthwhile to reproduce the relevant portion of the order passed by the Rohini Court, Delhi dated 2nd November, 2022, which reads as follows:

"Findings:

Considering the submissions and without going into the merits of the case, I am of the opinion that applicant/accused deserves limited opportunity to avail his legal remedies as permissible under Law Therefore, in the event of arrest the applicant/accused Mohit Goel shall be released on bail on furnishing a personal bond in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of the arresting officer. This order shall operate for a period of 8 days during, which period the applicant/accused may move an appropriate application before the Court concerned at Noida, UP or before the Hon'ble High Court of .M. 4thJudicature at Allahabad, UP. During the said period the following conditions are being imposed upon the accused:-

"(1) Applicant/accused shall not leave the country without permission from the court concerned.

(2) Applicant/accused shall immediately provide his address and mobile number to the Investigating Officer and shall also share his location with the IO.

(3) The applicant/accused shall not threaten or contact the complainant and shall not tamper with the evidence.

This order of Protection shall stands automatically be vacated on 11.11.2022. No further extension shall be given to the applicant/accused.

Needless to say that the accused shall surrender after the expiry of the said period in case no further protection is granted to him, while availing his legal remedies.

It is clarified that nothing mentioned herein shall tantamount to expression of opinion on the merits of the case.

With these observations, bail application stands disposed of.

Copy of this order be given dasti to the Ld. Counsel for applicant/accused."

17. Now coming on the merits of the order impugned. Before the concerned Magistrate, it has been stated by the Public Prosecuting Officer that a summons warrant/"B" warrant dated 19-10-2022 has been sent by the court against the accused to Tihar District Jail, due to which the accused has been in custody. It has also been stated by the Public Prosecuting Officer that the jurisdiction to grant transit remand to the accused under Section 177 Cr.P.C. read with Chapter-XXXIII is not within the jurisdiction of ASJ (Electricity) (N-W) Rohini Court, Delhi. It has also been stated by the Public Prosecuting Officer that since the concerned prison was ordered to present the accused in the Court of concerned Magistrate vide B-warrant dated 19-10-2022 against the accused and the accused was directly/indirectly in the custody of the court so in that case the accused cannot be given the benefit of anticipatory bail.

18. After considering the submissions made by the learned counsel for the accused-revisionist and the Public Prosecuting Officer, the concerned Magistrate has recorded its finding that in the present case, the accused presented in the court in custody and no application for regular bail has been made on his behalf. The concerned Magistrate has further recorded that the ASJ (Electricity) (N-W) Rohini Court, Delhi has passed an order directing the Investigating Officer. On the basis of aforesaid finding the concerned Magistrate vide order impugned has come to the conclusion that the basis for accepting the remand application submitted by the Investigating Officer is sufficient. The remand of the accused is accepted till 16-11-2022. The accused should be summoned to Tihar Jail on 16-11-2022 after taking the warrant "B" under Section 167 Cr.P.C.

19. On overall assessment and evaluation of the facts as cropped up before this Court, there are two legal issues, which need deeper scrutiny by this Court while deciding the present criminal revision and examining the order impugned:

(i) Whether the order impugned is legally passed by the Additional Chief Judicial Magistrate-II, Gautam Budh Nagar dated 3rd November, 2022, and

(ii) Whether the present criminal revision against the order impugned is legally maintainable or not?

20. Before coming on the first issue, this Court may record that there is no legislation or law which defines ''transit anticipatory bail' in definitive or specific terms. The 41st Law Commission Report in 1969 recommended the provision of Anticipatory bail to safeguard the right to life and personal liberty of a person under Article 21 of the Constitution of India. In the Code of Criminal Procedure 1973, on such recommendation, provision of Anticipatory Bail was inserted in Section 438. The term ''transit' means the act of being moved from one place to another while the word ''anticipatory bail' means a temporary release of any accused person who is anticipating arrest, therefore, transit anticipatory bail refers to bail granted to any person who is apprehending arrest by police of a State other than the State he is presently located in.

21. Section 438 of the Code of Criminal Procedure specifies direction for grant of bail to a person apprehending arrest and moreover confers power only upon the High Court and the Court of Sessions to grant anticipatory or transit bail if they deem fit. At the point when an individual has the motivation to accept that he might be arrested on an allegation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a grant of anticipatory bail. The Court may, as it thinks fit, direct that in case of such arrest, he will be released on anticipatory bail.

22. Nonetheless, transit anticipatory bill is different from ordinary bail. Ordinary bail is granted after arrest, releasing the accused from custody while anticipatory bail is granted in the anticipation of arrest i.e., it precedes detention of the accused and is effective immediately at the time of the arrest. In plain words, when an accused is arrested in accordance with the order of the court and whereas .M. 4ththe accused needs to be tried in some other competent court having jurisdiction in the aforementioned matter, the accused is given bail for the transitory period i.e., the time period required for the accused to reach that competent court from the place he is arrested in.

23. This may further record that transit anticipatory bail is protection from arrest for a definite period as granted by the Court granting such transit anticipatory bail. The mere fact that an accused has been granted transit anticipatory bail, does not means that the regular court, under whose jurisdiction the case would fall, would extend such transit anticipatory bail and would convert such transit anticipatory bail into anticipatory bail. Upon the grant of transit anticipatory bail, the accused person, who has been granted such transit anticipatory bail, has to apply for anticipatory bail or regular bail before the regular court.

24. This Court has no room to doubt that the order dated 2nd November, 2022 granting transit anticipatory bail to the revisionist, who was already in jail in another case passed by Additional Sessions Judge, Rohini Court, Delhi is superior/higher Court than the court of Additional Chief Judicial Magistrate-II, Gautam Budh Nagar, which has passed the order impugned issuing "B" warrant against the revisionist and also directed him to appear in jail. However, in the order granting transit anticipatory bail to the revisionist, it has specifically been provided that the said order shall operate for a period of 8 days during which period the accused-revisionist may move an appropriate application before the concerned Court at Noida, U.P. or before the Hon'ble High Court of Judicature at Allahabad, U.P., meaning thereby that as and when the accused-revisionist appears/surrenders before the concerned Court of Magistrate at Noida or he is produced by the Police from the Tihar Jail, Delhi before the said Court, the order granting transit anticipatory bail to the revisionist by the Additional Sessions Judge, Rohini Court, Delhi would come to an end automatically. The said protection had been given to the revisionist for a limited place i.e. Tihar Jail, Delhi to reach Court of concerned Magistrate at Noida. Therefore, the concerned Magistrate while passing the order impugned has not committed any illegality or infirmity as also he has not mislead/overlooked or ignored the order of the Additional Sessions Judge, Rohini Court, Delhi dated 2nd November, 2022. As such, the submission of the learned counsel for the revisionist that as per Section 15 of the Code of Criminal Procedure, the concerned Magistrate has no power to pass the order impugned issuing "B" warrant against the revisionist, has no legs to stand, as Section 15 is not applicable in the facts of the present case.

25. In view of the aforesaid, this Court finds that the issue no.1 goes against the revisionist, as there is no illegality or infirmity in the impugned order passed by the concerned Magistrate.

26. Apart from the above, this Court also finds substance in the submission made by the learned counsel for opposite party no.2 that any application filed on behalf of an accused who is already in jail in another criminal case for grant of anticipatory bail is not maintainable.

27. This Court is of the considered opinion that anticipatory bail under Section 438 Cr.P.C. on behalf of a person who is already in custody with the Police or is already in jail in another criminal case would not lie and would be nothing but travesty of justice in allowing the anticipatory bail to such an accused (Ref. Narinderjit Singh Sahni & Another Vs. Union of India reported in (2002) 2 SCC 210).

28. It is also to be noted that in the order impugned itself it has been recorded that the accused-revisionist has not made any application for grant of anticipatory bail before the concerned Magistrate.

Now this Court comes on the second issue.

29. This Court further finds substance in the submission made by the learned counsel for opposite party no.2 and the learned A.G.A. that the present criminal revision under Section 397/401 Cr.P.C. is not maintainable against the order impugned which is an interim/interlocutory order, whereby the concerned Magistrate has only issued "B" warrant against the revisionist and also directed him to appear before the Court of Additional Chief Judicial Magistrate-II, Noida, District Gautam Budh Nagar on the application made by the Investigating Officer. On this aspect of the matter, when the Court made pointed query to the learned counsel for the revisionist as to under which provision of law, the present criminal revision against an interlocutory/interim order is maintainable, he could not answer the same.

30. The Apex Court in the case of Amar Nath & Others Vs. State of Haryana & Others reported in 1977 0 AIR (SC) 2185 has held as follows:

"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 Section 397 (2) of the Code of Criminal Procedure."

(Emphasis supplied)

31. The said judgment of the Apex Court has recently been followed by another Division Bench of the Apex Court in the case of Honnaiah T.H. Vs. State of Karnataka & Others reported in 2022 SCC OnLine SC 1001. The Apex Court in the case of Honnaiah T.H. (Supra) has opined as follows:

"13. There would be a serious miscarriage of justice in the course of the criminal trial if the statement were not to be marked as an exhibit since that forms the basis of the registration of the FIR. The order of the trial judge cannot in these circumstances be treated as merely procedural or of an interlocutory in nature since it has the potential to affect the substantive course of the prosecution. The revisional jurisdiction under Section 397 CrPC can be exercised where the interest of public justice requires interference for correction of manifest illegality or the prevention of gross miscarriage of justice. A court can exercise its revisional jurisdiction against a final order of acquittal or conviction, or an intermediate order not being interlocutory in nature. In the decision in Amar Nath v State of Haryana, this Court explained the meaning of the term "interlocutory order" in Section 397 (2) CrPC. This Court held that the expression "interlocutory order" denotes orders of a purely interim or temporary nature which do not decide or touch upon the important rights or liabilities of parties. Hence, any order which substantially affects the right of the parties cannot be said to be an "interlocutory order". Speaking for a two-Judge Bench, Justice Murtaza Fazal Ali observed:

"6. [...] It seems to us that the term "interlocutory order" in Section 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 Section 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 Section 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 Amit Kapoor v Ramesh Chander, (2012) 9 SCC 460; Sheetala Prasad v Sri Kant, (2010) 2 SCC 190 6 (1977) 4 SCC 137 as to be outside the purview of the revisional jurisdiction of the High Court."

(Emphasis supplied)

14. Explaining the historical reason for the enactment of Section 397 (2) CrPC, this Court observed in Amar Nath (supra) that the wide power of revision of the High Court is restricted as a matter of prudence and not as a matter of law, to an order that "suffered from any error of law or any legal infirmity causing injustice or prejudice to the accused or was manifestly foolish or perverse."

In KK Patel v State of Gujarat,7 where a criminal revision was filed against an order taking cognizance and issuing process, this Court followed the view as expressed in Amar Nath (supra)."

32. In view of the aforesaid, this Court also finds that the second issue goes against the revisionist. Criminal revision under Section 397/401 Cr.P.C. against such an interlocutory/interim order like the order impugned is not maintainable.

33. Accordingly, the present criminal revision is dismissed. However, there shall be no order as to costs.

(Justice Shiv Shanker Prasad)

Order Date :- 22.08.2023

SK Srivastava/Sushil