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CASE NO.: Appeal (crl.)  632 of 2007

PETITIONER: Hamida

RESPONDENT: Rashid @ Rasheed & Ors

DATE OF JUDGMENT: 27/04/2007

BENCH: G.P. Mathur & A.K. Mathur

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 632 OF 2007 (@ Special Leave Petition (Crl.) No.4891of 2005)

G. P. MATHUR, J.

1.      Leave granted.

2.      This appeal, by special leave, has been filed by the complainant  Hamida widow of Balla against the judgment and order dated  1.7.2005 of Allahabad High Court, by which the petition under  Section 482 Cr.P.C. filed by the accused respondents herein was  disposed of with certain directions.  By the impugned order it was  directed that the accused respondents, who had been initially granted  bail in offences under Sections 324, 352 and 506 IPC by the Chief  Judicial Magistrate, Muzaffarnagar, would continue to remain on bail  even after the offence had been converted to one under Section 304  IPC, if they furnished the requisite personal bonds and sureties before  the concerned Court.   

3.      The appellant Hamida lodged an FIR at P.S. Kotwali,  Muzaffarnagar at 00.10 hours on 13.6.2005 alleging that when her  husband Balla was participating in a Panchayat of the Biradari  (community) the four accused respondents lodged an attack upon him  with licensed and illegal arms, exhorting that they would kill him.   Naushad accused assaulted him with a ’chhuri’ (long knife) due to  which Balla received serious injuries. The other accused fired from  their respective weapons and thereafter ran away from the scene of  occurrence.  On the basis of the FIR lodged by the appellant, a case  was registered as Crime No. 792 of 2005 under Sections 324, 352 and  506 IPC at P.S. Kotwali, Muzaffarnagar.  The injured Balla was  rushed to the District Hospital, where he was medically examined at  11.10 p.m. on 12.6.2005.  He had sustained serious stab wound in his  abdomen from which loops of intestines were coming out.  

4.      Two accused respondents were arrested by the police and were  produced before the learned Chief Judicial Magistrate on 13.6.2005  for the purpose of seeking remand. The accused also moved a bail  application seeking bail in Case Crime No.792 of 2005 which had  been registered against them.  The complainant-appellant Hamida  also put in appearance through a counsel and filed an affidavit stating  that as a serious injury had been caused to the injured Balla and  accused had resorted to firing, the offence committed by them was  one under Section 307 IPC, but the police in collusion with the  accused had registered the case only under Sections 324, 352 and 506  IPC.  It was also submitted that on account of the serious injuries

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received by the injured Balla, he had been referred to the Medical  College, Meerut, and the bail application should be heard after  summoning the medical examination report. The learned CJM,  however, observed that remand of the accused had been sought only  in the offences in which the case had been registered against them and  as the offences were bailable, they were entitled to bail. He  accordingly passed an order on the same day i.e. 13.6.2005 granting  bail to the accused Rashid and Arshad.   It was, however, made clear  in the order that if the case was converted into a more serious offence,  the accused would not get any benefit of the bail being granted to  them.  Subsequently, the remaining two accused were also released on  bail.  Balla succumbed to his injuries in the night intervening 16th and  17th of June, 2005.   Thereafter, the offence was converted into one  under Section 304 IPC. It was at this stage that the four accused  respondents filed a petition under Section 482 Cr.P.C. before the High  Court seeking a direction to the Chief Judicial Magistrate,  Muzaffarnagar, to permit them to remain on same bail even after  conversion of the offence into one under Section 304 IPC.  The only  submission made before the High Court was that on the same facts  and circumstances, the accused had been granted bail by the learned  Chief Judicial Magistrate and they had not misused the privilege of  the bail and, therefore, they should be allowed to remain on bail even  after conversion of offence.  The High Court accepted the prayer  made on behalf of the accused respondents and the relevant part of the  order, which is under challenge, is being reproduced below :- "In view of the facts and circumstances of the case  and the submissions made by the learned counsel for the  applicants, it is directed that if the applicants appear  before the court concerned and furnish their personal  bonds and two sureties each in the like amount to the  satisfaction of the court concerned the same shall be  accepted under Section 304 I.P.C.         With these observations, the application is  disposed of finally."  

5.      We have heard learned counsel for the parties.  The principal  submission of learned counsel for the appellant (complainant) is that  the power under Section 482 Cr.P.C. could not have been exercised  by the High Court in granting bail to the accused respondents as there  is a specific provision in the Code of Criminal Procedure viz. Section  439 under which the accused could approach the appropriate Court  for grant of bail to them.  It has been further submitted that while  exercising power under Section 482 Cr.P.C. the High Court has  committed grave error in issuing the direction that the bail granted to  the accused for an offence under Sections 324, 352 and 506 IPC will  enure to their benefit even after conversion of the case which was  registered against them into one under Section 304 IPC. The  submission is that the accused respondents ought to have surrendered  and after they had been taken into custody, they should have applied  afresh for bail in the offence under Section 304 IPC.

6.      We are in agreement with the contention advanced on behalf of  the complainant appellant.  Section 482 Cr.P.C. saves the inherent  powers of the High Court and its language is quite explicit when it  says that nothing in the Code shall be deemed to limit or affect the  inherent powers of the High Court to make such orders as may be  necessary to give effect to any order under the Code, or to prevent  abuse of the process of any Court or otherwise to secure the ends of  justice.  A procedural Code, however exhaustive, cannot expressly  provide for all time to come against all the cases or points that may  possibly arise, and in order that justice may not suffer, it is necessary  that every court must in proper cases exercise its inherent power for  the ends of justice or for the purpose of carrying out the other  provisions of the Code.  It is well established principle that every

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Court has inherent power to act ex debito justitiae to do that real and  substantial justice for the administration of which alone it exists or to  prevent abuse of the process of the Court.  As held by the Privy  Council in Emperor v. Khwaja Nazir Ahmad AIR 1945 PC 18 with  regard to Section 561-A of the Code of Criminal Procedure, 1898  (Section 482 Cr.P.C. is a verbatim copy of the said provision) gives  no new powers.  It only provides that those which the Court already  inherently possesses shall be preserved and is inserted, lest it should  be considered that the only powers possessed by the Court are those  expressly conferred by the Code and that no inherent power had  survived the passing of the Act.    7.      It is well established principle that inherent power conferred on  the High Courts under Section 482 Cr.P.C. has to be exercised  sparingly with circumspection and in rare cases and that too to correct  patent illegalities or when some miscarriage of justice is done.   The  content and scope of power under Section 482 Cr.P.C. were examined  in considerable detail in Madhu Limaye v. State of Maharashtra AIR  1978 SC 47 and it was held as under : "The following principles may be stated in relation to the  exercise of the inherent power of the High Court - (1) That the power is not to be resorted to if there is a  specific provision in the Code for the redress of the  grievance of the aggrieved party;  (2) That it should be exercised very sparingly to prevent  abuse of process of any Court or otherwise to secure the  ends of justice;  (3) That it should not be exercised as against the express  bar of law engrafted in any other provision of the Code."

8.      In State v. Navjot Sandhu (2003) 6 SCC 641 (para 29), after a  review of large number of earlier decisions, it was held as under :         "29.    \005\005\005\005\005 The inherent power is to be  used only in cases where there is an abuse of the process  of the Court or where interference is absolutely necessary  for securing the ends of justice. The inherent power must  be exercised very sparingly as cases which require  interference would be few and far between. The most  common case where inherent jurisdiction is generally  exercised is where criminal proceedings are required to  be quashed because they are initiated illegally,  vexatiously or without jurisdiction. Most of the cases set  out herein above fall in this category. It must be  remembered that the inherent power is not to be resorted  to if there is a specific provision in the Code or any other  enactment for redress of the grievance of the aggrieved  party.  This power should not be exercised against an  express bar of law engrafted in any other provision of the  Criminal Procedure Code.  This power cannot be  exercised as against an express bar in some other  enactment."

9.      In Arun Shankar Shukla v. State of U.P. (1999) 6 SCC 146 the  High Court had entertained a petition under Section 482 Cr.P.C. after  an order of conviction had been passed by the Sessions Judge and  before the sentence had been awarded and further proceedings in the  case had been stayed.   In appeal this Court set aside the order of the  High Court after reiterating the principle that it is well settled that  inherent power is not to be invoked in respect of any matter covered  by specific provisions of the Code or if its exercise would infringe  any specific provision of the Code.  It was further observed that the  High Court overlooked the procedural law which empowered the  convicted accused to prefer statutory appeal against conviction of the  offence and intervened at an uncalled for stage and soft-pedalled the  course of justice at a very crucial stage of the trial.  The order of the

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High Court was accordingly set aside on the ground that a petition  under Section 482 Cr.P.C. could not have been entertained as the  accused had an alternative remedy of an appeal as provided in the  Code.   It is not necessary to burden this judgment with other  decisions of this Court as the consistent view throughout has been that  a petition under Section 482 Cr.P.C. cannot be entertained if there is  any other specific provision in the Code of Criminal Procedure for  redress of the grievance of the aggrieved party.    10.     In the case in hand, the accused respondents could apply for  bail afresh after the offence had been converted into one under  Section 304 IPC.  They deliberately did not do so and filed a petition  under Section 482 Cr.P.C. in order to circumvent the procedure  whereunder they would have been required to surrender as the bail  application could be entertained and heard only if the accused were in  custody.  It is important to note that no order adverse to the accused  respondents had been passed by any Court nor there was any  miscarriage of justice or any illegality.  In such circumstances, the  High Court committed manifest error of law in entertaining a petition  under Section 482 Cr.P.C. and issuing a direction to the subordinate  court to accept the sureties and bail bonds for the offence under  Section 304 IPC.  The effect of the order passed by the High Court is  that the accused after getting bail in an offence under Section 324,  352 and 506 IPC on the very day on which they were taken into  custody, got an order of bail in their favour even after the injured had  succumbed to his injuries and the case had been converted into one  under Section 304 IPC without any Court examining the case on  merits, as it stood after conversion of the offence.  The procedure laid  down for grant of bail under Section 439 Cr.P.C., though available to  the accused respondents, having not been availed of, the exercise of  power by the High Court under Section 482 Cr.P.C. is clearly illegal  and the impugned order passed by it has to be set aside.

11.     Learned counsel for the appellant has submitted that charge  under Section 302 IPC has been framed against the accused  respondents by the trial court and some subsequent orders were  passed by the High Court by which the accused were ordered to  remain on bail for the offence under Section 302 read with Section 34  IPC on furnishing fresh sureties and bail bounds only on the ground  that they were on bail in the offence under Section 304 IPC.  These  orders also deserve to be set aside on the same ground.

12.     In the result, the appeal is allowed.  The impugned order dated  1.7.2005 passed by the High Court and all other subsequent orders  whereby the accused respondents were directed to remain on bail for  the offence under Section 302 read with Section 34 IPC on furnishing  fresh sureties and bail bonds are set aside.  The accused respondents  shall be taken into custody forthwith.  It is, however, made clear that  it will be open to the accused respondents to apply for bail for the  offences for which they are charged before the appropriate Court and  in accordance with law.   

13.     Before parting with the case, we feel constrained to observe that  in spite of repeated pronouncements of this Court that inherent power  under Section 482 Cr.P.C. should be exercised sparingly with  circumspection in rare cases and that too when miscarriage of justice  is done, the High Court entertained the petition under Section 482  Cr.P.C., the ultimate result whereof was that the order of bail granted  in favour of the accused for an offence under Sections 324, 352 and  506 IPC enured to their benefit even after the offence had been  converted into one under Section 304 IPC and also subsequently  when charge had been framed against them under Section 302 read  with Section 34 IPC.   The accused did not remain in custody even for  a single day nor did they approach the Court of Chief Judicial  Magistrate or Sessions Judge for being granted bail under Section 304  or 302 IPC, yet they got the privilege of bail under the aforesaid

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offences by virtue of the order passed by the High Court. The dockets  of the High Courts are full and there is a long pendency of murder  appeals in the High Court from which this case has arisen. Ends of  justice would be better served if valuable time of the Court is spent in  hearing those appeals rather than entertaining petitions under Section  482 Cr.P.C. at an interlocutory stage which are often filed with some  oblique motive in order to circumvent the prescribed procedure, as is  the case here, or to delay the trial which will enable the accused to  win over the witnesses by money or muscle power or they may  become disinterested in giving evidence, ultimately resulting in  miscarriage of justice.