Order
1. Leave granted.
2. As none was appearing on behalf of the accused despite service, we have appointed Mr D.N Goburdhun as amicus curiae to assist us.
3. By order dated 2-5-2001 passed in Crl. Miscellaneous Application No. 14 of 2001, the Vth Additional Sessions Judge, Kolhapur set aside the judgment and order passed by the Judicial Magistrate, First Class, Malkapur releasing the accused under Section 167(2) of the Criminal Procedure Code (CrPC) on the ground that the charge-sheet was not submitted within a period of 90 days. The High Court by the impugned judgment and order dated 31-7-2001 passed in Criminal Application No. 1694 of 2001 set aside the judgment and order passed by the Sessions Judge, Kolhapur by holding that the order passed by the Judicial Magistrate, Malkapur being an interlocutory order was not revisable under the revisional jurisdiction.
4. Being aggrieved and dissatisfied by the said judgment and order, the de facto complainant has preferred this appeal by filing special leave.
5. Learned counsel for the appellant submitted that the impugned order passed by the High Court is totally misconceived. It is his contention that the High Court committed a basic error in not referring to the order dated 25-1-2001 below Exhibit 8. He further submitted that in any set of circumstances, the Court ought not to have exercised its jurisdiction under Section 439 to perpetuate injustice caused to the victims. Learned counsel appearing on behalf of the State also supports the contention raised by the learned counsel for the appellant.
6. Learned counsel Mr Goburdhun appearing on behalf of the accused submitted that the order passed by the High Court does not call for any interference. He referred to decisions in support of his contention that no grounds are made out by the prosecution or the complainant for cancellation of bail.
7. In the present case, against the accused, FIR for the offences punishable under Sections 302, 307, 147, 148, 149, 324 and 323 IPC and Section 27 of the Arms Act was registered. The accused were arrested on 28-10-2000 and were produced before the Judicial Magistrate. They filed an application under Section 167(2) CrPC on 25-1-2001 for releasing them on bail on the ground that charge-sheet was not submitted within the stipulated time and the court released them on bail on the same date by exercising jurisdiction under Section 167(2) CrPC. The State filed an application on 31-1-2001 under Section 437(5) and Section 439(2) CrPC before the Sessions Judge, Kolhapur for cancellation of bail. Before the said application could be finally disposed of, the accused preferred an application Ext. 8 submitting that an application under Sections 437(5) and 439(2) was not maintainable before the Sessions Court and the State ought to have approached the learned Magistrate for cancellation of the bail. That application was rejected by the learned Additional Sessions Judge by order dated 3-3-2001. Thereafter, the learned Additional Sessions Judge by judgment and order dated 2-5-2001 allowed the said application and set aside the order passed by the Judicial Magistrate on the ground that the accused were released on the 89th day, that is, before expiry of 90 days.
8. In our view, it appears that the High Court has committed basic error in not referring to the provisions of Section 439(2) CrPC which specifically empower the High Court or the Court of Session to cancel such bail. Section 439(2) reads as under:
“439. Special powers of High Court or Court of Session regarding bail.—(1)***
(2) 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.”
9. The proviso to Section 167 itself clarifies that every person released on bail under Section 167(2) shall be deemed to be so released under Chapter XXXIII. Therefore, if a person is illegally or erroneously released on bail under Section 167(2), his bail can be cancelled by passing appropriate order under Section 439(2) CrPC. This Court in Puran v. Rambilas (2001) 6 SCC 338 has also clarified that the concept of setting aside an unjustified, illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation.
10. Learned counsel appearing on behalf of the respondent submitted that the order below Ext. 8 passed by the learned Additional Sessions Judge was not brought to the notice of the High Court and, therefore, this mistake was committed. In our view, before setting aside the order passed by the Sessions Court, it was the duty of the High Court to verify the records. It is also apparent that the High Court committed an error apparent in not referring to the provision of Section 439(2) CrPC which empowers the Sessions Court to cancel bail in such circumstances.
11. In this view of the matter, the appeal is allowed and the impugned judgment and order passed by the High Court is set aside. The order passed by the Vth Additional Sessions Judge, Kolhapur on 3-3-2001 in Criminal Misc. Application No. 14 of 2001 is restored. The accused to surrender immediately.