Nalla Thamby Sritharan vs Uma Shanker
1989 Latest Caselaw 316 Del

JUDGMENT

R.L. Gupta, J.

1. This petition under Section 482 of Code Criminal Procedure has been filed for quashing an order dated 24-4-1989 passed by J. D. Kapur, Addl. Sessions Judge, New Delhi, staying the operation of the order of grant of bail by the learned Addl. Chief Metropolitan Magistrate, New Delhi at the time of admission of a revision petition filed by the complainant Sh. Uma Shanker, Air Customs Officer, New Delhi, Indira Gandhi International Air Port.

2. I have heard Mr. R. D. Mehta, learned counsel for the petitioner and Sh. J. S. Arora, learned counsel for the respondent and have given my careful consideration to the points involved. The main thrust of the argument of the learned counsel for the petitioner is that no revision is maintainable against an order granting bail by the learned Addl. Chief Metropolitan Magistrate, New Delhi. Since revision itself is not maintainable, therefore, the order granting stay of the operation of the order of bail in itself was liable to be quashed. In this respect, learned counsel for the petitioner drew my attention to a case B.S. Rawat v. Andre Christopher Mydlarz and Others, 1988 (36) E.L.T. 60 (Bombay). However, this authority rather helps the case of the Customs Department because in that case also bail order was passed by the learned Addl. Sessions Judge in respect of the foreign national who was alleged to have been involved in smuggling. That order was quashed. Only a direction was given that the trial shall be expedited. Learned counsel then cited an authority of Supreme Court of India in the case of Amar Nath & Others v. State of Haryana & Another, 1977 CLR (SC). That was case in which it was held, that an order substantially affecting the rights of the accused cannot be termed as an interlocutory order and does not fall within the mischief of the said provision [Section 397(2) of Criminal Procedure Code]. In that complaint case an order was passed summoning the accused person. That order was held to be not an interlocutory order and as such revision against such an order was held to be not barred.

3. In the present case, it has to be noted, whether the order of grant of bail to an accused person can be termed as an interlocutory order or not. The order of grant of bail substantially affects the rights of the prosecuting authority because in the given circumstances of a case, it may feel that it is likely to prejudice the trial of the case itself, because by that time material witnesses may not have been examined and as such there may be a well-founded apprehension that the accused, if enlarged on bail, might tamper with the prosecution evidence. Similarly it may substantially affect the rights of an accused because in a case if circumstances justify his enlargement on bail, his detention in jail may seriously affect his liberty. Learned counsel for the petitioner also cited Nilu and Others v. The State, 1983 Criminal Law Journal 1590, but that was a case on an entirely different footing. In that case an accused who had been granted bail earlier flouted conditions of the bail which led to its cancellation by the learned Sessions Judge. A revision was filed against the order of the learned Sessions Judge. In those circumstances, it was held that a revision petition against an order in which the bail had been cancelled by the learned Sessions Judge on the ground of flouting of condition by the accused could not be entertained.

4. In the case of Miss R. Shakuntala v. Roshan Lal Agarwal and Others, 1985 Criminal Law Journal, 68, the Bombay High Court had the occasion to consider a similar matter little more deeply. It held that the bail orders are interlocutory in large variety of cases but every kind of bail order is not interlocutory. It was ultimately held as under :

"When an order is passed by the trial Court and the High Court is later on approached for the purpose of cancellation of the bail, the basic postulate is that the order was valid when it was passed, but that on account of supervening circumstances it needed to be varied or modified or cancelled. When you file a revision application against the order granting bail your grievance is that the order was bad from its inception. The ratio of the judgments in the cases of Bashir v. State of Haryana, Gurucharan Singh v. State (Delhi Administration), (1978 CrI.L.J. 129), and Delhi Administration v. Sanjay Gandhi, (1978 Crl.L.J. 952) has, therefore, no application to the facts of this case. Those were either cases where the bail granted by the lower court was attempted to be cancelled at the hands of the High Court or the High Court was otherwise moved for cancellation of bail by an initial order the validity of which initial order was not challenged by appropriate proceedings and it was in this connection that the Supreme Court laid down certain guidelines when such power of cancellation of bail should be exercised by the High Court."

5. A bare perusal of the above authority, therefore, clearly shows that a revisional court has ample power to cancel an order of bail which from its inception is considered to be unjust, illegal or amounts to gross mis-carriage of justice. In the case of Robert Lendi v. The Collector of Customs and Another - 1987 CrI.L.J. 55 = 1987 (30) E.L.T. 914 (Del.), it was held, that when an accused foreign national faced trial under Sections 132 and 135 of Customs Act in a serious case involving smuggling of huge quantity of gold, refusal of bail by the Magistrate was proper. The case in hand is also similar. The accused in this case is also a foreign national and is alleged to have smuggled gold weighing 1399.600 grams valued at Rs. 4,40,874/-.

6. I am, therefore, of the opinion that the revision before the learned Addl. Sessions Judge was fully competent and he was fully justified in granting stay of the order of learned Addl. Chief Metropolitan Magistrate before whom the above authority was cited and was not at all discussed. Since the revision itself is competent, therefore, the grant of stay by the learned Addl. Sessions Judge was fully justified.

7. I, therefore, do not find any merit in this petition, which is hereby dismissed.