2017 (12) TMI 1819 - SC - Indian Laws

Seeking summon for the purpose of facing the trial - offences punishable Under Sections 120-B, 363, 366, 368, 370(4) and 376 of the Indian Penal Code, 1860 read with Section 3/4 and 16/17 of POCSO Act - HELD THAT - 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 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. 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. 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/Revisionary Court to decide as to what orders need to be passed in exercise of its Appellate/Revisionary 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 the subordinate Court. Such order is, therefore, not legally sustainable - 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. 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 - Appeal allowed.

Summary

Issues involved:
1. Appellant's appeal against the High Court's partial allowance of a criminal revision petition.
2. Summoning of Respondent Nos. 2 and 3 in a criminal case.
3. Lack of impleading the Complainant in the revision.
4. High Court's direction to consider and allow bail application on the same day.

Analysis:

1. Appellant's Appeal Against High Court's Partial Allowance:
The appeal was filed against the High Court's partial allowance of a criminal revision petition. The Sessions Judge had issued non-bailable warrants against Respondent Nos. 2 and 3 in a criminal case. The High Court set aside this part of the order and directed Respondent Nos. 2 and 3 to surrender before the Trial Court and apply for regular bail. The appeal challenged this decision.

2. Summoning of Respondent Nos. 2 and 3:
The Appellant filed an application under Section 193 of the Code, requesting the summoning of Respondent Nos. 2 and 3 in a criminal trial alongside two other Accused. The Sessions Judge allowed the application, finding a prima facie case against Respondent Nos. 2 and 3. However, the High Court set aside the order for non-bailable warrants against Respondent Nos. 2 and 3, directing them to surrender and apply for bail instead.

3. Lack of Impleading the Complainant in the Revision:
The Single Judge of the High Court partially allowed the revision petition without impleading the Complainant as a party. The Appellant, who had filed the application leading to the Sessions Judge's order, was not included in the revision proceedings. The Supreme Court noted that the Complainant should have been a necessary party to the criminal revision along with the State.

4. High Court's Direction on Bail Application:
The High Court directed the Sessions Judge to consider and allow the bail application of Respondent Nos. 2 and 3 on the same day it was moved. The Supreme Court found this direction to be erroneous, stating that no superior Court can mandate a subordinate Court to pass a particular order on any application. The Sessions Judge should have the discretion to independently decide on bail applications based on facts and legal principles.

In conclusion, the Supreme Court allowed the appeal, setting aside the High Court's direction to consider and allow the bail application on the same day. The Sessions Judge was instructed to decide the bail application, if made by Respondent Nos. 2 and 3, based on merits and in accordance with the law. The judgment emphasized the importance of judicial independence and discretion in decision-making by the Courts.