Madan Mohan vs The State Of Rajasthan

CRIMINAL APPEAL NO. 2178 OF 2017 (Arising out of S.L.P.(Crl.)No.8030 of 2017)

Madan Mohan ….Appellant(s)

VERSUS

State of Rajasthan & Ors. ….Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1) Leave granted.

2) This appeal is filed by the Complainant against

the final judgment and order dated 28.04.2017 passed

by the High Court of Judicature for Rajasthan at Signature Not Verified Digitally signed by ASHA SUNDRIYAL Jaipur in S.B. Criminal Revision Petition No.477 of Date: 2017.12.14 16:11:30 IST Reason:

2017 whereby the High Court partly allowed the

1 criminal revision petition filed by respondent Nos.2

and 3 herein and set aside that part of the order dated

19.11.2016 passed by the Sessions Judge, Sawai

Madhopur in Session Trial No.44/2016 whereby the

Session Judge while allowing the application filed

under Section 193 of the Criminal Procedure Code,

1973 (hereinafter referred to as “the Code”) by the

appellant (Complainant) issued non-bailable warrants

against respondent Nos. 2 & 3 for their arrest.

3) The facts of the case lie in a narrow compass so

also the issue involved in the appeal is short. They,

however, need mention infra.

4) Two accused, namely, Vimlesh Kumar and Janak

Singh are facing trial for the offences punishable

under Sections 120-B, 363, 366, 368, 370 (4) and 376

of the Indian Penal Code, 1860 (hereinafter referred to

as "IPC") read with Section 3/4 and 16/17 of POCSO

Act, in Sessions Trial No.44/2016. It is pending in the

Court of District and Sessions Judge, Sawai

2 Madhopur. The Sessions trial began pursuant to FIR

No.110/2014 filed by the complainant-Madan Mohan

(appellant herein) in Police Station, Piloda. A charge

sheet has since been filed against two accused

mentioned above.

5) The appellant filed an application under Section

193 of the Code in the Sessions Trial complaining

therein that the names of respondent Nos.2 and 3 -

Ashish Meena and Vimal Meena though figured

prominently in all the material documents filed along

with the charge-sheet, yet for no justifiable reasons,

their names were deleted from the charge-sheet

whereas only the names of two accused, i.e., Vimlesh

and Janak Singh were retained to face the trial.

6) The appellant, therefore, prayed that respondent

Nos.2 and 3 be summoned for being arrayed as

accused persons along with Vimlesh Kumar and

Janak Singh to face the trial because, according to

him, respondent Nos.2 and 3 are also involved in the

3 commission of the offence along with other two

accused.

7) The Sessions Judge, by order dated 19.11.2016,

allowed the application finding prima facie case

against respondent Nos.2 and 3 and accordingly

summoned both by issuing non-bailable warrant of

arrest against them.

8) Respondent Nos.2 and 3 felt aggrieved and filed

Criminal Revision under Section 197 of the Code in

the High Court at Rajasthan out of which this appeal

arises. The complainant-appellant herein at whose

instance the order was passed by the Sessions Judge

was, however, not impleaded as party in the revision.

9) By impugned order, the Single Judge allowed the

revision in part and set aside that portion of the order

of the Sessions Judge which had directed issuance of

non-bailable warrant of arrest of respondent Nos.2

and 3 while summoning them. The High Court then

proceeded to issue further direction to respondent

4 Nos.2 and 3 to surrender before the Trial Court and

move the application for their regular bail, which

would be considered and allowed by that Court on the

same day on which it is moved. A further liberty was

granted to respondent Nos. 2 and 3 to raise the

contentions at the time of framing of the charges.

10) It is apposite to quote in verbatim the impugned

order:

“1. Heard learned counsel for the accused/petitioners.

2. This Criminal Revision Petition has been preferred on behalf of the accused/petitioners against the order dated 19.11.2016 passed by learned Sessions Judge, Sawai Madhopur whereby the application filed under Section 193 Cr.P.C. by the complainant-Madan Mohan Meena has been allowed and the cognizance for the offences punishable under Sections 363 & IPC and Section 5/6 POCSO Act in the alternative Section 376(2)(g) IPC has been taken against the petitioners, Ashish Meena & Vimal Meena, and they have been called through non-bailable warrants.

3. During the course of arguments, learned counsel for the petitioners restricts his prayer to the extent that the order summoning the accused/petitioners

5 through non-bailable warrants may be quashed.

4. This fact is undisputed that after thorough investigation made by the Police, charge-sheet for the offences punishable under Sections 363, 366, 368, 370(4), 376, 120-B IPC and Section 3/4 and 16/17 of the POCSO Act was filed only against Vimlesh Kumar and Janak Singh. Accused/petitioners, Ashish Meena and Vimal Meena, were not charge-sheeted. Vide order impugned dated 19.11.2016, petitioners have been summoned through non-bailable warrants for the offences mentioned above.

5. Taking all the facts and circumstances of the case into consideration in totality, it appears that the order to the extent of summoning the petitioners, Ashish Meena and Vimal Meena, through non-bailable warrants does not appear justified and is liable to be quashed and set aside. However, the petitioners, Ashish Meena and Vimal Meena, are directed to surrender before the learned trial Court and to move application for their regular bail, which will be considered and allowed by that Court on the same day on which it is moved.

6. It is also made clear that the accused/petitioners will be at liberty to raise the contentions raised before this Court at the time of framing of charges before the learned trial Court.

7. The Criminal Revision Petition stands disposed off accordingly.”

(Emphasis supplied)

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11) Against the impugned order of the High Court,

the complainant has felt aggrieved and after obtaining

the leave has filed this appeal by way of special leave

in this Court.

12) Heard learned counsel for the parties.

13) Having heard the learned counsel for the parties

and on perusal of the record of the case, we are

constrained to allow the appeal and set aside the order

to the extent mentioned below.

14) In our considered opinion, the Single Judge

seemed to have passed the impugned order without

application of judicial mind inasmuch as he

committed two glaring errors while passing the order.

First, he failed to see that the complainant at whose

instance the Sessions Judge had passed the order and

had allowed his application under Section 193 of the

Code was a necessary party to the criminal revision

along with the State. Therefore, he should have been

impleaded as respondent along with the State in the

7 revision. In other words, the Complainant also had a

right of hearing in the Revision because the order

impugned in the Revision was passed by the Session

Judge on his application. This aspect of the case was,

however, not noticed by the Single Judge.

15) Second and more importantly was that the Single

Judge grossly erred in giving direction to the Sessions

Judge to consider the bail application of respondent

Nos.2 and 3 and “allow” it on the “same day”.

16) In our considered opinion, the High Court had no

jurisdiction to direct the Sessions Judge to "allow" the

application for grant of bail. Indeed, once such

direction had been issued by the High Court then

what was left for the Sessions Judge to decide except

to follow the directions of the High Court and grant

bail to respondent Nos. 2 and 3. In other words, in

compliance to the mandatory directions issued by the

High Court, the Sessions Judge had no jurisdiction to

reject the bail application but to allow it.

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17) No superior Court in hierarchical jurisdiction can

issue such direction/mandamus to any subordinate

Court commanding them to pass a particular order on

any application filed by any party. The judicial

independence of every Court in passing the orders in

cases is well settled. It cannot be interfered with by

any Court including superior Court.

18) When an order is passed, it can be questioned by

the aggrieved party in appeal or revision, as the case

may be, to the superior Court. It is then for the

Appellate/Revisionery Court to decide as to what

orders need to be passed in exercise of its

Appellate/Revisionery jurisdiction. Even while

remanding the case to the subordinate Court, the

Superior Court cannot issue a direction to the

subordinate Court to either “allow” the case or “reject”

it. If any such directions are issued, it would amount

to usurping the powers of that Court and would

amount to interfering in the discretionary powers of

9 the subordinate Court. Such order is, therefore, not

legally sustainable.

19) It is the sole discretion of the Sessions Judge to

find out while hearing the bail application as to

whether any case on facts is made out for grant of bail

by the accused or not. If made out then to grant the

bail and if not made out, to reject the bail. In either

case, i.e., to grant or reject, the Sessions Judge has to

apply his independent judicial mind and accordingly

pass appropriate reasoned order keeping in view the

facts involved in the case and the legal principles

applicable for grant/rejection of the bail. In this case,

the Single Judge failed to keep in his mind this legal

principle.

20) It is for this reason, in our view, such directions

were wholly uncalled for and should not have been

given. This Court cannot countenance issuing of such

direction by the High Court.

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21) In our view, at best, the High Court could have

made an observation to the effect that the respondent

Nos.2 and 3 (accused persons) are at liberty to

approach the Sessions Judge for grant of bail and, if

any application is filed, it would be decided by the

Sessions Judge on its merits and in accordance with

law expeditiously but not beyond it.

22) We are, therefore, constrained to set aside the

direction given by the High Court to the Sessions

Judge to "consider and allow" the bail application

made by respondent Nos. 2 & 3 in Sessions Trial Case

No.44/2016 on the same day on which it was moved.

23) So far as the direction by which cognizance of the

case against respondent Nos.2 and 3 was taken by the

Sessions Judge, the Single Judge has upheld it. It is

not questioned here. In the light of this, the

respondent Nos.2 and 3 have to submit themselves to

the jurisdiction of the Sessions Judge and raise the

pleas which are available to them in law.

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24) In view of foregoing discussion, the appeal

succeeds and is accordingly allowed. The impugned

order to the extent indicated above is set aside. The

Session Judge would now decide the application for

bail, if made by Respondent Nos. 2 and 3, on its

merits and in accordance with law, if not so far

decided.

………...................................J. [R.K. AGRAWAL]

...……..................................J. [ABHAY MANOHAR SAPRE] New Delhi;

December 14, 2017

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