B.K. Chakravarty vs Bijaya Gurung
1990 Latest Caselaw 273 Del

JUDGMENT

P.K. Bahri, J.

(1) This petition has been moved by B.K. Chakravarty. Air Customs Officer, seeking quashment of the order of the Additional Sessions Judge dated March 31, 1990, by which she had directed release of the respondent on bail on finishing a bail bond in the sum of Rs. 5,00,000.00 (five lakhs only) with two sureties in the like amount with the direction that one of the sureties would be local.and that the petitioner shall not leave jurisdiction of the court without permission and he shall surrender his passport, if not already done.

(2) The respondent had moved a petition under Section 482 read with Sections 401 & 397 of the Code of Criminal Procedure seeking modification of the said order granting bail playing that the bail amount as well as the number of sureties be reduced. Vide order dated May 22, 1990, this Court had passed he following order : "Keeping in view the facts and circumstances of this case, I direct that the petitioner be released on bail on his furnishing a bail bond in the sum of rupees one lakh with one surety in the like amount to the satisfaction of the court concerned"

(3) The learned counsel for the petitioner has argued that the respondent who is a foreign national should col have been granted bail by the Additional Sessions Judge as recovery of illicit gold of the value of Rs. 24,12,467/ had been effected in this case. He has pointed out that the delay in the trial is taking place due to somewhat unusual cross-examination being carried out by the defense counsel on various dates resulting that statement of even one witness has not been completed on various dates He has urged that there was no lapse on the part of the court or the prosecution for the delay occurring ia the trial He has referred to Criminal Miscellaneous (Main) No. 746/89, Nalla Thamby Sritharan v. Uma Shankar decided o.n May 23,1989, by R.L Gupta, J. and Criminal Miscellaneous (Main) No. 838/89,Qamaruddin v. R.P. Sharma & Another, decided on September 25, 1989, by Santosh Duggal.J It has been held in the said cases that a criminal revision is maintainable turn seeking setting aside of the order of the lower court granting bail and it has been also held that where a foreigner is involved in a serous economic offence, normally he should not be granted bail as possibility of such a foreigner jumping the bail and leaving the country cannot be over looked and the trial court should try to complete the case against a foreigner at the earliest. He has, hence, urged that the Additional Sessions Judge was not justified in granting bail to the respondent.

(4) The learned counsel for the respondent has, on the other band, raised a preliminary objection to the maintainability of the present petition. He has argued that the order of the Additional Sessions Judge granting ban has now merged in the order of the High Court when the High Court had passed a specific order granting bail to the respondent on furnishing bail bound in the sum of rupees one lakh with one surety He has placed reliance on Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat, and M/s Gojer Brothers (P) Limited v Ratan Lal Singh, . He has also placed reliance on State of Orissa v. Ram Chander Agarwala etc., , in support of his contention that the High Court also has no power to review its own order and resort to provisions of Section 482 of the Code of Criminal Procedure is not permissible when there is a specific prohibition in the laid Code for reviewing its own order.

(5) The learned counsel for the petitioner, on the other hand, has tried to distinguish the aforesaid judgments and has contended that at the time the High Court decide the petition of the respondent the question whether Additional Sessions Judge bad passed correct order of bail or not was not under consideration. He has placed reliance on the judgment of the Andhra Pradesh High Court in Anwar Jahan & Another v. Mohammad Osman Ali & Another, 1990 Cri L J. 920

(6) The first question to be decided is whether the order of the Additional Sessions Judge granting bail had or had not merged in the order of the High Court by which the bail order was passed by the High Court on different terms than imposed by the Additional Sessions Judge. It is apparent that the High Court had passed the order in exercise of its inherent jurisdiction under Section 482 read with Section 401 of the Code of Criminal Procedure when it passed the bail order modifying the terms of the bail order of the Additional Sessions Judge. Provisions of Section 440 of the Code of Criminal Procedure are not applicable. It is also evident that the High Court has suo moto power of revision and while deciding the petition of the respondent, a point could have been urged before the High Court that the respondent ought not to have been granted bail by the Additional Sessions Judge and the illegality or the impropriety of the order of the Additional Session Judge could have been examined by the High Court even during the proceedings for deciding the petition of the respondent seeking modification of the order of the trial court So,in the present case it is evident that the order of the High Court had been passed in exercise of its inherent powers under Section 482 of the Code of Criminal Procedure and there cannot lie any petition to the High Court for review of the said order as the High Court has no power of review. It may be that in some fit case the High Court while exercising inherent powers could set aside its own order if such an order had been obtained by practicing fraud on the High Court but such is not the case here.

(7) The judgment cited by the learned counsel for the petitioner in the case of Anwar Jahan (supra) is distinguishable on facts. In the said case an order of maintenance in favor of the wife had been made by the Magistrate and a revision had been filed by the husband in the High Court in which he sought revocation of the order granting the maintenance taking, the plea. that no order granting the maintenance could have been passed by the Magistrate. The said revision was dismissed The wife had moved a revision petition before the Sessions Judge seeking modification of the order granting maintenance praying that quantum of maintenance should be increased. Sessions Judge had dismissed the criminal revision taking the view that the order of the Magistrate stood merged in the order of the High Court when the High Court had dismissed the criminal revision of the husband. This view of the Sessions Judge was found to be not in consonance with law and rightly so because the question which arose for decision before the High Court was whether an order of maintenance could at all be passed against the husband or not ? The quantum of maintenance was not in issue before the High Court in the said petition moved by the husband. Hence, the High Court had no occasion to examine the question whether quantum of maintenance fixed by the Magistrate was correct or not ? Thus the High Court rightly held that the revision petition by the wife seeking more amount as maintenance filed before the Sessions Judge was maintainable. The judgments of the Supreme Court in the cases of Shankar Ramchandra and Gojer Brothers (supra) were noticed and were distinguished. This judgment is not applicable to the facts of the present case, as d:scussed above.

(8) In the case of Shankar Ramchandra (supra) the question which arose for decision before the Supreme Court was whether the High Court could interfere under Articles 226 & 227 of the Constitution with the order of the Appellate Court in proceedings under the Bombay Rent Act when a petition for a revision under Section 115 of the Code of Civil Procedure against the same order had been previously dismissed by a Single Judge of that Court. The Supreme Court held that on dismissal of civil revision by the High Court, the order of the Appellate Court stood merged in the order of the High Court and thus, order cannot be again open for challenge before the High Court by resort to the provisions of Articles 226 & 227 of the Constitution of India In the case of M/s. Gojer Brothers it was indisputable fact that a decree for possession was passed in favor of the appellants predecessor in-interest by the trial court and in appeal the decree was confirmed and the matter was taken to the High Court which also confirmed the decree The question which arose for consideration before the Supreme Court was whether the decree passed by the trial court could be deemed to have merged in the decree passed by the High Court ? The Supreme Court held that the juristic justification of the doctrine of merger may be sought in the principle that there cannot be at one and the same time more than one operative order governing the same subject matter. Therefore, the judgment of an inferior Court, if subjected to an examination by the superior Court, ceases to have existence in the eye of law and is treated as being superseded by the judgment of the superior Court. In other words, the judgment of the inferior Court loses its identity by its merger with the judgment of the superior Court. Examining the facts of the present case in view of the aforesaid principles of law laid down by the Supreme Court, it is evident that the order of the Additional Sessions Judge granting the bail, which was subject to scrutiny by the High Court in the petition filed by the respondent under Section 482 read with Section 401 of the Code of Criminal Procedure, was modified by the High Court and an order for grant of bail was made by the High Court in the terms mentioned above. Now, it cannot be said that the order of the Additional Sessions Judge had not merged in the order of this Court. The Two orders cannot stand independently. Hence, it must be held that the order of the Additional Sessions Judge bad merged in the order of this Court had after this Court and made an order, the same cannot be questioned by filing another petition under Section 482 of the Code of Criminal Procedure unless it is shown that the order had been obtained from this Court by practicing fraud. In the case of Shankar Ramchandra (supra) the Supreme Court had clearly laid down that once a judgment bad been pronounced by a High Court either in exercise of its appellate or its revisional jurisdiction no review or revision can be entertained against that judgment as there is no provision in the Code of Criminal Procedure which would enable the High Court to review the same or to exercise revisional jurisdiction. It was held that even the provisions of Section 561-A of the old Code of Criminal Procedure which is similar to Section 482 of the new Code of Criminal Procedure cannot be invoked for exercise of a power which is specifically prohibited by the said Code.

(9) The learned counsel for the petitioner has not been able to cite any other judgment of the Supreme Court which might have taken a different view. Hence, I hold that this petition is not maintainable and must be dismissed as such. I dismiss this revision petition on a preliminary point.