In the present case we are dealing with the question whether the Sessions Court possesses a power to compel presence of an accused during the pendency of an application under Sub- section 2 of Section 439 of the Code of Criminal Procedure, 1973 especially when the trial is not pending before the Court of Sessions. On perusal of the Code it is apparent that there is no such of power
vesting in the learned Sessions Judge. This is a case where there is a total absence of a power and as stated earlier, there is no inherent power vesting in the Session Court which could be exercised for ensuring the personal presence of the accused. If the case against the accused was pending before the Sessions Court which is considering the application for cancellation of bail, the position would have been different. If this Court is dealing with an application for cancellation of bail, in view of inherent power under Section 482 of the said Code, this Court can in an appropriate case issue direction to the accused to personally remain present at the time of hearing of application for cancellation of bail. However, a Court of Sessions does not have that power.
Bombay High Court
Deepak Gopaldas Bajaj vs Union Of India & Ors on 12 September, 2008
Bench: A.S. Oka
. The submissions of the learned counsel appearing for the parties were heard on the last date. In this application under Section 482 of the Code of Criminal Procedure Code, 1973 (hereinafter referred to as the said Code) a very short question arises for consideration. The said question is as under :- "Whether the Court of Sessions while deciding an application for cancellation of bail under Sub-section 2 of Section 439 of the Code of Criminal Procedure Code, 1973 has a power to direct the accused to personally remain present before the Court during the pendency of the application for cancellation of bail ?"
2. The factual matrix of the case is very narrow. The applicant was arrested with an allegation of offence punishable under Sections 465 and 467 of the Indian Penal Code and under Section 135(1)(a) & 135(1)(b) read with 135(1)(i) of the Customs Act, 1962. Initially the applicant was remanded to Judicial custody. On 15th June, 2007 the learned Metropolitan Magistrate granted the application for bail made by the applicant and enlarged the applicant on bail. An application was filed by the 1st respondent before this Court for cancellation of the 3
bail. The application was withdrawn with a liberty to file appropriate application before appropriate Court and accordingly, an application was filed by the 1st respondent before the Sessions Court seeking cancellation of bail granted in favour of the applicant. The said application came up before the learned Sessions Judge, Mumbai. On 11th July, 2008 an Order was passed by the learned Sessions Judge directing the advocate for the applicant to keep the applicant present on 21st July, 2008. The said Order passed by the learned Sessions Judge reads thus :-
"CORAM : HIS HONOUR THE PRINCIPAL JUDGE,
SHRI.T.V.NALAVADE
DATE : 11.07.2008
Advocate R.K.Pathak, for the applicant
Advocate C.J.Dovason, for the respondent
I.O.Ayyapa attached to D.R.I. Present.
Advocate for the respondent submitted that he wants time to file reply. Advocate is asked to keep the accused present on 21.07.2008."
4
An application was made by the advocate for the applicant for re- calling the said Order. The learned Sessions Judge passed the impugned Order on 21st July, 2008 directing the advocate for the applicant to keep the applicant present. The challenge in this application is to the direction issued by the learned Sessions Judge directing the applicant to remain present before the Sessions Court.
3. The submission of the learned counsel for the applicant is that while deciding an application under Section 439(2) of the said Code, there is no jurisdiction or power vesting in the Sessions Court to direct the respondent in the said application to remain present before the Sessions Court even before his bail is cancelled. His further submission is that there is no inherent power vesting in the Sessions Court. Therefore, the impugned direction issued by the learned Sessions Judge was without jurisdiction. The learned counsel for the 1st respondent supported the impugned Orders. He submitted that there is no prohibition under the provisions of the said Code which prevents the learned Sessions Judge from passing such an Order. He pointed out the conduct of the applicant of evading the 5
process of law. He pointed out that there is an Order of preventive detention passed against the petitioner which could not be served to the petitioner till today. He submitted that considering the conduct of the applicant, the learned Sessions Judge was justified in issuing directions for ensuring that the applicant remains present when the application for cancellation of bail is heard. He has placed a reliance on the decision of a Division Bench of this Court in the case of Dashrath N. Shekokar Versus S.B.Prabhu & others, in Criminal Application No.2407 of 1993 and Criminal Writ Petition No.909 of 1993 decided on 14th January, 1994. He, therefore, submitted that there is no reason to interfere with the discretionary order passed by the learned Sessions Judge.
4. I have carefully considered his submissions. It must be stated here that during the pendency of this application a report was received from the learned Judge (The learned Principal Judge of the City Civil and Sessions Court, Bombay) pointing out as to how adjournments were sought on behalf of the applicant at the time of hearing of the application for cancellation of bail. At the outset, it 6
must be made clear that this Court has not considered the aspect of the conduct of the applicant and it is for the learned Judge to pass appropriate Orders for ensuring that the application is disposed of expeditiously in accordance with law.
5. It must be stated here that the trial against the applicant is not pending before the Sessions Court. The Court before which the trial is pending can always enforce the personal presence of an accused as there is already a bail bond executed by the accused for remaining present before the Court in which the trial is pending. It must be noted here that this Court is considering a limited question of existence of power of the Sessions Court to compel an accused to remain present at the time of hearing of an application under sub- section 2 of Section 439 of the said Code.
6. It will be necessary to refer to the provisions of Sub-section 2 of Section 439 of the said Code. Sub-section 2 of Section 439 reads thus :-
"A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody." 7
As stated earlier, except for the application for cancellation of bail there is no proceeding pending against the applicant in the Court of Sessions. The power of the Court of Sessions under Sub-section 2 of Section 439 of the Code of Criminal Procedure Code, 1973 is confined to cancellation of bail provided a case is made out for cancellation of bail. The Hon'ble Apex Court has repeatedly held that summoning or directing an accused to remain present before the Criminal Court is a very serious matter. The Criminal Court always has a power to issue process in the form of summons and/or warrant or a proclamation in accordance with the provisions of the said Code. However, the process as aforesaid can be issued by the Court only in accordance with the provisions of the said Code. It must be noted here that as in the case of a Court goverened by the Code of Civil Procedure Code, 1908 a Criminal Court sub-ordinate to this Court is not vested with inherent powers.
7. Even under Section 438 of the said Code, before amendment, there was no specific power vesting in the Sessions Court to enforce the personal presence of an accused at the time of 8
hearing of the application under Section 438. A State amendment was carried out to Section 438 which conferred power on the Court to enforce the attendance of an accused before the Court hearing an application for anticipatory bail. Subsequently, there is a similar Central amendment made to the said Section 438 of the said Code.
8. The learned counsel for the 1st respondent had relied upon a decision of a Division Bench in the case of Dashrath N. Shekokar Versus S.B.Prabhu (Supra). The issue before the Division Bench was whether a second application for attachment of property was maintainable under the Criminal Law (Amendment) Ordinance, 1944. The applicant before this Court in the said case was working as Sales Tax Officer. He was trapped red handed while accepting a bribe by the Anti Corruption Bureau. Charge sheet was filed against him in the said Court. A separate case of holding the assets disproportionate to the income was also filed against the applicant before the Court. His property was attached in exercise of powers under Section 165 of the Criminal Procedure Code, 1973. A third party filed an objection to the attachment to the extent of a part of the property attached. The 9
interim attachment was confirmed by the learned Chief Judge of the Court of Small Causes, Bombay. Appeals were filed against the said Order by the third parties raising an objection to the attachment. One appeal preferred against the Order of attachment was allowed. The Order of this Court setting aside the attachment was challenged by the State Government before the Apex Court. The Special Leave Petition was dismissed by the Apex Court. Thereafter, a fresh authorization was issued by the State Government on 19th May, 1993 authorizing respondent No.2 Anti Corruption Bureau to file a fresh application for attachment. Accordingly, an application was made before the Chief Judge, Small Causes Court, Bombay. On the said application, a show cause notice was issued. An order of attachment was passed. The order of attachment passed by the learned Chief Judge came to be challenged by filing Criminal Application No.2407 of 1993 in this Court. The Division Bench considered the Clause 10 of the said Criminal Law (Amendment) Ordinance, 1944. After considering the Clause 10 of the said Ordinance of 1944, the Division Bench observed that the Orders of attachment made under the ordinance were interlocutory in nature. The Division Bench noted that 10
under the ordinance there was no prohibition provided against applying for an attachment after the earlier attachment had lapsed. After considering the scheme of the ordinance, the Division Bench held that second application for attachment was maintainable as there was no prohibition under the ordinance from initiating second proceeding for attachment of the property of the accused.
9. In the case before the Division Bench there was a power vesting in the Court to issue or levy an attachment. Under the scheme of the ordinance, the attachment was to remain in force for a limited period. As there was a power conferred by the ordinance to issue attachment, the ratio of the said decision has no application.
10. In the present case we are dealing with the question whether the Sessions Court possesses a power to compel presence of an accused during the pendency of an application under Sub- section 2 of Section 439 of the Code of Criminal Procedure, 1973 especially when the trial is not pending before the Court of Sessions. On perusal of the Code it is apparent that there is no such of power 11
vesting in the learned Sessions Judge. This is a case where there is a total absence of a power and as stated earlier, there is no inherent power vesting in the Session Court which could be exercised for ensuring the personal presence of the accused. If the case against the accused was pending before the Sessions Court which is considering the application for cancellation of bail, the position would have been different. If this Court is dealing with an application for cancellation of bail, in view of inherent power under Section 482 of the said Code, this Court can in an appropriate case issue direction to the accused to personally remain present at the time of hearing of application for cancellation of bail. However, a Court of Sessions does not have that power.
12
11. In the circumstances, in the present case, the direction issued by the learned Sessions Judge will have to be held as illegal. Even assuming that the applicant is evading service of order of detention or is evading arrest in other cases, while considering a prayer for cancellation of bail, the learned Sessions Judge cannot direct personal presence of the applicant on the date fixed for hearing of the application for cancellation of bail.
12. In the circumstances, I pass the following order. (i) The impugned Orders dated 11th July, 2008 and 21st July, 2008 are quashed and set aside.
(ii) It is made clear that all the contentions of the 1st respondent in the application for cancellation of bail are expressly kept open.
(A.S.OKA, J.)
No comments:
Post a Comment