Mahendra Nagesiya vs The State Of Jharkhand
2023 Latest Caselaw 3414 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
         Cr. M.P. No. 2170 of 2014

1. Mahendra Nagesiya
2. Nashim Ansari              ...     ...   ...    Petitioners
                         Versus
The State of Jharkhand                ...     ...      Opposite Party
                         ---------
CORAM:         SRI SANJAYA KUMAR MISHRA, C.J.
                    SRI ANANDA SEN, J.
                         ---------
For the Petitioners:     Ms. Renu Bala, Advocate
For the Opp. Party:      Mr. Fahad Allam, A.P.P.
                         ---------

07/Dated: 08.09.2023

      Upon hearing the learned counsel for the parties, this Court

passed the following, (Per, Sanjaya Kumar Mishra, C.J.)

                   ORDER

1. The learned Single Judge while considering the application,

filed under Section 482 read with Section 389(2) of the Code of

Criminal Procedure, 1973, (hereinafter referred to as 'the Code' for

brevity) with a prayer to grant bail to the petitioners has referred the

matter to the larger Bench to decide whether an application filed

under Section 482 read with Section 389 (2) of the Code is

maintainable.

2. The petitioners have been convicted by the learned Judicial

Magistrate, First Class, Latehar in G.R. Case No. 253 of 2013 for the

offence under Sections 386, 387, 448 read with Section 34 of the

Indian Penal Code, 1860 (hereinafter referred to as 'Penal Code' for

brevity) and have been sentenced to undergo rigorous imprisonment

for three years and pay fine of Rs. 5000/- each for the offence under

Section 386 of the Penal Code, rigorous imprisonment for three years

and pay fine of Rs. 2000/- each for the offence under Section 387 of

the Penal Code and rigorous imprisonment for six months for the

offence under Section 448 of the Penal Code and in default of

payment of fine, to undergo simple imprisonment for one month. The

conviction was recorded on 22.03.2014. On that day, the petitioners

were in custody and they have been convicted by the learned

Magistrate and have been sentenced, as aforesaid. So, there was no

scope to file an application under Section 389 of the Code. The

petitioners thereafter preferred an appeal to the learned Sessions

Judge bearing Cr. Appeal No. 21 of 2014. The learned Sessions

Judge also rejected the application filed under Section 389 (2) of the

Code, hence, the present application has been filed.

3. As per the High Court of Jharkhand Rules, 2001, Rule 84

Chapter VIII, the nomenclature has been provided. In Clause (g)

Cr.M.P, the Rule provides that the petitions of criminal nature

including applications under Section 482 of Cr. P.C. (quashing) and all

applications under any other provision of the Cr.P.C. or under any

law dealing with the crimes or criminal matters, but will not include the

applications filed under any provisions of the Constitution of India or a

petition for bail or anticipatory bail, shall be registered as Cr.M.P.

(Criminal Miscellaneous Petitions).

4. Hence, the filing of Cr.M.P. by mentioning the provisions under

Section 482 as well as Section 389 (2) of the Code will not cause any

hindrance. It may be noted that sub-section (2) of Section 389 of the

Code provides that the power conferred by this Section on an

appellate court may be exercised also by the High Court in the case of

an appeal by a convicted person to a Court subordinate thereto. So,

the requirement is that the appeal should be preferred by convicted

person to the Court subordinate to the High Court. In such cases, if

the cause of action arises, i.e., rejection of their application under sub

section (1) of Section 389 of the Code when the High Court has the

jurisdiction to grant the relief, i.e., provided under sub-section (1) to be

within the power of the appellate court.

5. In that view of the matter, the registration of Cr.M.P. for an

application under Section 389(2) is proper. It is also noted here that

mentioning of Section 482 of the Code will not change the nature of

the application in the sense that Section 482 of the Code only

recognises the inherent power and can be exercised in the High Court

to pass any order ex debito justitiae or in the interest of justice. Even if

in an application filed on any other provision this Court has jurisdiction

to pass any order in furtherance of the interest of justice, so the matter

is answered accordingly.

6. The judgment be circulated amongst all the Sections of this

Court. Since the petitioners have already been granted bail by this

Court as per the order dated 31.08.2015, the main prayer has become

infructuous and therefore, the Cr.M.P. is disposed of.

(Sanjaya Kumar Mishra, C.J.)

(Ananda Sen, J.)

A.F.R.

APK/VK