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CASE NO.: Appeal (crl.)  1508 of 2007

PETITIONER: Savitri Goenka

RESPONDENT: Kusum Lata Damant and Ors

DATE OF JUDGMENT: 02/11/2007

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.      1508           OF 2007 (Arising out of SLP (Crl.) No. 3151 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Though many points were urged in respect of the appeal,  we find that the impugned order of the High Court cannot be  maintained on one ground. Though it had issued notice to the  appellant, the matter was disposed of without hearing the  appellant.  It appears that respondent no.1 had filed the bail  application, that is, Criminal Misc. Petition No.2945/2004 on  10.12.2004. The court directed service on the appellant.   There is no dispute that there was no service of notice on the  appellant.  According to the appellant, on learning about the  proceedings, Criminal Misc. Application No.4653/05 was filed  in Criminal Miscellaneous Application No.2945/04.  The High  Court was pleased to issue notice on 14.7.2005 on the said  application and the High Court directed the accused to  implead the appellant. Learned Additional Sessions Judge  dismissed the bail application of the accused, respondent No.1  on the ground that relief had already been obtained by her  from the High Court. On 22.9.2005, without service on the  appellant, the High Court converted the application under  Section 482 of the Code of Criminal Procedure, 1973 (in short  ’Cr.P.C.’), to one under Section 438 Cr.P.C. and granted  interim protection.   

3.      Learned counsel for the appellant submitted that several  facts were suppressed.  By giving wrong impression about the  factual scenario, the appellant persuaded the High Court to  pass the impugned order.  In response, learned counsel for the  respondent submitted that there is in fact no infirmity in the  order.  In any event, the charge sheet has been filed and  respondent no.1-accused has already been granted regular  bail.  A copy of the order passed on the bail application has  been filed for records.

4.      It is to be noted that the practice of converting  applications filed under Section 482 Cr.P.C. to one for bail in  terms of Section 438 or 439 Cr.P.C. has not been approved by  this Court.  Additionally, direction was given for issuance of  notice and service on the appellant which has not been done

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by respondent no.1-accused.  The fact that the charge-sheet  has been filed or bail has been granted is really of no  consequence because of the fact that relief in the regular bail  application appears to have been granted to respondent no.1  in view of the interim protection given by the High Court to the  accused by the impugned order.           

5.      In view of the aforesaid position, the impugned order is  set aside and the matter is remanded for fresh consideration.   We make it clear that we have not expressed any opinion on  the merits of the case.  To avoid unnecessary delay let the  parties appear without further notice on 23rd  November, 2007,  before learned Single Judge. If any party does not appear on  that day, needless to say learned Single Judge shall deal with  the matter in accordance with law.  Learned Chief Justice of  the High Court is requested to direct listing of the matter  before learned Single Judge according to the roaster.       

6.      The appeal is allowed to the aforesaid extent.