MADAN MOHANversusSTATE OF RAJASTHAN & ORS.

                         [2017) 12 S.C.R. 222



A                           MADAN MOHAN
                                    v.
                    STATE OF RAJASTHAN & ORS.
                    (Criminal Appeal No.2178 of2017)
B                         DECEMBER 14, 2017
       [R.K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]
          Party: Necessary party - Criminal case - Complainant-
  appellant filed application under s. I 93 praying for summoning
   respondent no.2 and 3 along with the other accused to face trial as
c they  were also involved in the commission of offence along with the
  other accused persons - Sessions judge allowed the application
  and accordingly summoned respondent no.2 and 3 issuing non-
  bailable warrant of arrest against them - Respondent no.2 and 3
  filed revision - Complainant-appellant at whose instance the order
D was passed by the Sessions judge, howeper, was not impleaded as
  party in the reFision - Single judge of High Court allowed the
   revision in part and set aside the portion of the order of Sessions
  judge which had directed issuance of non-bailable warrant of arrest
  of respondent no.2 a11d 3 while maintaining summoning order -
   011 appeal, Held: The Single judge of High Court failed to see that
E
  the complai11ant at whose instance the Sessions Judge had passed
  the order and had allowed his application under s. I 93 was a
  necessary party to the criminal reFision along with the State - The
  complainant should have been impleaded as respondent along with
  the State in the revision - In other words, the complainant also had
F a right of hearing in the revision because the order impugned in the
  revision was passed by the Session Judge on his application.
         Judicial propriety: Judicial independence - 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
G "reject" it - 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 inteifered
   with by any Court including superior Court - In the instant case, ;
H
                                 222
      MADAN MOHAN v. STATE OF RAJASTHAN & ORS.                             223


single judge of High Court set aside the portion of the order of A
Sessions judge which had directed issuance of non-bailable warrant
of arrest of respondent no.2 and 3 while summoning them - High
Court then proceeded to issue further direction to respondent no.2
and 3 to surrender before the trial court and move the application
for regular bail which would be considered and allowed by that . B
court on the same day on which it is moved - Such directions amount
to usurping the powers of that Court and would amount to interfering
in tlze discretionary powers of the subordinate Court - Such order
is, therefore, not legally sustainable.
       Bail: Duty/power of court while deciding bail application -
Held: It is the sole discretion of the Sessions Judge to find out while    c
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                 D
reasoned order keeping in view the j{1cts involved in the case and
the legal pri11ciples applirnb!e for grant/rejection of the bail.
      Allowing the appeal, the Court
      HELD: 1. The complainant should have been impleaded as
respondent along with the State in the revision. In other words,           E
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. Second and more
importantly was that the Single Judge grossly erred in giving              F
direction to the Sessions Judge to consider the bail application
of respondent Nos.2 and 3 and "allow" it on the "same day".
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           G
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. No superior Court in
hierarchical jurisdiction can issue such direction/mandamus to             H
224           SUPREME COURT REPORTS                    [2017] 12 S.C.R.



A     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. [Paras 14-17] [228-D-G]
B          2. 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
C · 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
D 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
E 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. It is for this reason, such
    directions were wholly uncalled for and should not have been
    given. This Court cannot countenance issuing of such direction
F by the High Court. 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. The direction given by the High
G Court to the Sessions Judge to "consider and allow" the bail
    application made by respondent Nos. 2 & .3 in Sessions Trial Case
    on the same day on which it was moved is set aside. - 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
H has upheld it. It is not questioned here. In the light of this, the
       MADAN MOHAN v. STATE OF RAJASTHAN & ORS.                                225


respondent Nos.2 and 3 have to submit themselves to the                        A
jurisdiction of the Sessions Judge ;md raise the pleas which are
available to them in law. [Paras 18-23] [228-H; 229-B-G]
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 2178 of2017.
      From the Order dated 28.04.2017 of the High Court of Judicature          B
for Rajasthan at Jaipur in CRLRP No. 477 of 2017.
     Rajesh Sharma, Om Prakash Tehariya, Rajeev Kumar, Ms. Shalu
Sharma, Ad vs for the Appellant.
       Ritesh Agrawal, S. Rishabh, Ajay Kapoor, Milind Kumar, Advs             C
for the Respondents.
      The Judgment of the Court was delivered by
       ABHAY MANOHAR SAPRE, J. 1. Leave granted.
       2. This appeal is filed by the Complainant against the final judgment   D
and order dated 28.04.2017 passed by the High Court of Judicature for
Rajasthan at Jaipur in S.B. Criminal Revision Petition No.477 of2017
whereby the High Court partly allowed the 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           E
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       F
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         a
Trial No.44/2016. It is pending in the Court of District and Sessions
Judge, Sawai 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.
                                                                               H
226             SUPREME COURT REPORTS                         [2017) 12 S.C.R.



A             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 -AshishMeena 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
B
      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,
      respondentNos.2 and 3 are also involved in the commission of the offence
c     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.
D
            8. Respondent Nos.2 and 3 felt aggrieved and filed Criminal
      Revision under Section 197 of the Code in the High Court at Rajas than
      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.
 E
             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 Nos.2 and 3 to surrender before
 F    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.
             I 0. It is apposite to quote in verbatim the impugned order:
G
             "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
H
MADAN MOHAN v. STATE OF RAJASTHAN & ORS.                         227
      [ABHAY MANOHAR SAPRE, J.]

Cr.P.C. by the complainant-Madan Mohan Meena has been            A
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.
                                                                 B
3. During the course of arguments, learned counsel for the
petitioners restricts his prayer to the extent that the order
summoning the accused/petitioners through non-bailable
warrants may be quashed.
4. This fact is undisputed that after thorough investigation     c
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,            D
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            E
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 reeular bail. which will be    F
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       G
Court.
7. The Criminal Revision Petition stands disposed off
accordingly."
                                        (Emphasis supplied)
                                                                 H
228            SUPREME COURT REPORTS                         [2017] 12 S.C.R.



A            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
B     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
c     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
D     had a right of hearing in the Revision because the rirder 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 important! y was that the Single Judge gross! y
      erred in giving direction to the· Sessions Judge to consider the bail
 E    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.
 F
      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.
             17. No superior Court in hierarchical jurisdiction can issue such
      direction/mandamus to any subordinate Court commanding them to pass
G
      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
H
       MADAN MOHAN v. STATE OF RAJASTHAN & ORS.                                 229
             [ABHAY MANOHAR SAPRE, J.]

is then for the Appellate/Revisionery Court to decide as to what orders         A
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         B
the discretionary powers of 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 ornot. If made out then to grant the bail      C
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 nass 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.                                                                D
      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.
       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              E
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        F
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       G
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.
      24. In view of foregoing discussion, the appeal succeeds and is
accordingly allowed. The impugned order to the extent indicated above           H
230              SUPREME COURT REPORTS                      [2017] 12 S.C.R.



A     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.


      Devika Gujral                                              Appeal allowed.