NAZMAversusJAVED @ ANJUM

                         [2012] 9 S.C.R. 826

A                               NAZ MA
                                   v.
                          JAVED @ ANJUM
                (Criminal Appeal No. 1693 of 2012)

                        OCTOBER 19, 2012)
8
       [K.S. RADHAKRISHNAN AND .DIPAK MISRA, JJ.]

       Practice and Procedure - Miscellaneous application -
  Filed in a disposed of criminal writ petition - Entertained by
C High Court - Propriety of - Held: High Court committed effor
  iii entertaining the application - Once the writ petition is
  disposed of, the High Court becomes functus officio and
  cannot entertain review petitions or miscellaneous
  applications except for carrying out typographical or clerical
D errors.
        High Court - Power of - Under Articles 226 and 227 and
  s. 482 Cr.P.C. - To interfere with orders granting or rejecting
  bail - Held: Jurisdiction of High Court under Articles 226 and
  227 and uls. 482 are exceptional in nature and to be used in
E most exceptional cases - Powers uls. 439 is a/so discretionary
  and required to be exercised with great care and caution -
  Powers to grant or reject the bail is within the powers of regular
  criminal court and the High Court not justified in usurping their
  powers in its inherent jurisdiction - Code of Criminal
F Procedure, 1973 - s. 439 and 482 - Constitution of India, 1950
  - Articles 226 and 227.

       Brothers of the appellant lodged FIR against
  respondent No. 1 and his family which was registered u/
G SS. 498-A, 323, 324, 504 and 506 IPC and SS. 3 and 4 of
  Dowry Prohibition Act.

        Respondent No. 1 and his family filed separate
    Criminal Miscellaneous Writ Petition before High Court
H                                826
                 NAZMA v. JAVED @ ANJUM                     827

without making the appellant party to that. Writ petition           A
was disposed of by High Court staying the arrest of the
respondent No. 1 and his family members till the
conclusion of investigation or submission of report u/s.
173 Cr.P.C. High Court also directed respondent No. 1 to
deposit Rs. 2000/- per month to be withdrawn by the                 B
appellant.

        The police submitted its report closing the
    investigation. The Chief Judicial Magistrate took
    cognizance of the offence and issued summons.                   C
    Respondent No. 1 filed an application in the disposed of
    writ petition. The High· Court allowed the application
    extending the stay of arrest until the conclusion of trial
    and continued the direction to deposit Rs. 2000/-. The
    appellant filed the present petition challenging the order
    of High Court in the application.                               D

        Allowing the appeal, the Court

        HELD: 1. The High Court has committed a grave
    error in entertaining the criminal miscellaneous                E
    application in a disposed of criminal writ petition. Once
    the criminal writ petition has been disposed of, the High
    Court becomes functus officio and cannot entertain
    review petitions or miscellaneous applications except for
    carrying out typographical or clerical errors. In the instant
                                                                    F
    case, the High Court has entertained a petition in a
    disposed of criminal writ petition and granted reliefs,
    which is impermissible in law. In spite of the clear
    pronouncement of law by this Court, still, the High Courts
    are passing similar orders, which practice has to be
    deprecated in the strongest terms. [Paras 11, 12 and 13)        G
    [833-D; 834-E; 835-A-B]

        2. The High Court has committed a grave error also
1
    by passing an order not to arrest 1st respondent till the
    conclusion of the trial. The High Courts are entertaining       H
    828      SUPREME COURT REPORTS                [2012] 9 S.C.R

A writ petitions under Articles 226 and 227 of the
   Constitution, so also under Section 482 CrPC and
   passing and interfering with various orders granting or
   rejecting request for bail, which is the function of ordinary
  Criminal Court. The jurisdiction vested on the High Court
B under Articles 226 and 227 of the Constitution as well as
  Section 482 CrPC are all exceptional in nature and to be
  used in most exceptional cases. The jurisdiction under
  Section 439 CrPC is also discretionary and it is required
  to be exercised with great care and caution. Grant of bail
c or not to grant, is within the powers of the regular
  Criminal Court and the High Court, in its inherent
  jurisdiction, not justified in usurping their powers. [Paras
  12 and 13) [834-E-H; 835-A]

      Hari Singh Mann v. Harbhajan Singh Bajwa and Ors.
D (2001) 1 SCC169: 2000 (4) Suppl. SCR 313 - relied on.

                         Case Law Reference:
          2000 (4) Suppl. SCR 313 Relied on            Para 11

E       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1693 of 2012.

      From the Judgment & Order dated 26.08.2004 of the High
  Court of Judicature at Allahabad in Criminal Misc. Application
F No. 13306 of 2004 in Crl. Misc. Writ Petition No. 5877 of 2003.

        Shiv Ram Kumar for the Appellant.

       Arvind Kumar, Laxmi Arvind, Poonam Prasad, Pradep
    Kumar Mathur for the Respondent.
G
        The Judgment of the Court was delivered by

        K.S. RADHAKRISHNAN, J. 1. Leave granted.

        2. We are, in this appeal, concerned with the legality and
H
              NAZMA v. JAVED@ ANJUM                           829
              [K.S. RADHAKRISHNAN, J.]
propriety of an order passed by the High Court of Allahabad in        A
a disposed of Criminal Miscellaneous Writ Petition.

     3. Facts giving rise to this appeal are as follows: The
marriage of the appellant and 1st respondent took place in the
year 1997 according to the Muslim rites and customs and out           8
of that wedlock three children were born. According to the
appellant, 1st respondent married again for a third time. During
the subsistence of the appellant's marriage, 1st Respondent
kept on harassing the appellant demanding dowry, which
resulted in the lodgment of an F.l.R. by the appellant's brother,     C
being F.l.R. No. 72 of 2003, on 5.8.2003 and a case was
registered under Sections 498-A, 323, 324, 504, 506 of the
Indian Penal Code (IPC) and Sections 3 and 4 of the Dowry
Prohibition Act against 1st respondent and his family members.
The case was later transferred to the Ladies Police Station,
Rakab Ganj, Agra vide an order dated 12.9.2003 of the S.S.P.,         D
Agra.

      4. Family members of 1st respondent then approached the
High Court of Allahabad and filed a Criminal Miscellaneous Writ
Petition No. 5426 of 2003 for quashing the F.l.R. In that writ        E
petition, the appellant was not made a party, but only her brother.
The family members of 1st respondent had submitted before
the High Court that an.amount of Rs.2,000/- per month would
be deposited in the Court of the Chief Judicial Magistrate, until
the conclusion of the trial and the appellant could withdraw the      F
same. The High Court on 17.9.2003 passed the following order:

           "Heard Id. Counsel for the petitioner and Ld. A.G.A.

            Learned counsel for the petitioner has agreed to
     deposit Rs.2,000/- (rupees two thousand only) per month          G
     on compassionate ground to be withdrawn by the wife of
     the petitioner Smt. Nazma. The amount shall be deposited
     in the court of Chief Judicial Magistrate concerned until the
     conclusion of trial.
                                                                      H
    830       SUPREME COURT REPORTS                   [2012] 9 S.C.R.


A                In the above said facts and circumstances, since
          investigation is only with regard to the matter pertaining to
          the demand of dowry and some ancillary offences under
          Indian Penal Code, we are inclined to Interfere primarily
          with an intent to settle the dispute between the parties
B         amicably. The arrest of the petitioners in case crime
          No.227 of 2003, under Sections 498-A, 323, 324, 504,
          506 /PC and Ss. 3 and 4 of D.P. Act, Police Station
          Achhnera, District Agra, shall not be effected until the
          conclusion of investigation or submission of the report
c         under Section 173 Cr.P.C. with this direction the petition
          is finally disposed of."

                                                   (emphasis added)

  The above order is seen passed by the High Court with the
D intention that the parties would settle their disputes amicably.

        5. 1st respondent also filed a Criminal Miscellaneous Writ
  Petition No. 5877 of 2003 before the High Court of Allahabad
  seeking identical reliefs. Writ petition was filed without making
E the appellant or his brother a party. Writ petition was disposed
  of by the High Court on 25.9.2003 stating that 1st respondent
  should not be arrested until the conclusion of the investigation
  or submission of any report under Section 173 of the Code of
  Criminal Procedure (CrPC), the operative portion of the order
  reads as follows:
F
                Heard Id. Counsel for the petitioner and Id. AG.A.

                The arrest of other family members has been stayed
          in Criminal Misc. Writ Petition No. 5426/2003 (Smt.
G         Amana and others Vs. State of U.P. & others). The said
          writ petition has been disposed of also with a direction to
          deposit Rs.2,000/- per month. This petition is on behalf of
          husband. The offences are under Section 498-A l.P.C. and
          some other ancillary offence under l.P.C. etc. photo copy
          of the order passed in the above said writ petition has
H
              NAZMA v. JAVED @ ANJUM                              831
              [K.S. RADHAKRISHNAN, J.]
     been produced by learned counsel for the petitioner. It is         A
     placed on record.

           In this view of the matter, the arrest of the petitioner
     in case Crime No. 227 of 2003, under Sections 498-A,
     323, 324, 504 and 506 IPC and Sections 3 and 4 of DP               B
     Act, P.S. Achhnera, district Agra, shall not be effected until
     the conclusion of investigation or submission of any report
     under section 173 Cr.P.C.

     With this direction this petition is finally disposed of."
                                                                        c
     6. The Investigating Officer then filed the report closing the
investigation. Learned Chief Judicial Magistrate, however, took
cognizance of the case and issued summons vide his order
dated 15.1.2004. 1st respondent challenged that order before
the High Court of Allahabad in Revision Petition No. 694 of             D
2004 which was dismissed by the High Court on 24.2.2004 by
the following order:

            "Having heard the learned counsel for the parties,
     this revision petition is dismissed. However, in the interest
     of justice, I direct that if revisionist moves objections          E
     through counsel within two weeks against the impugned
     order, the same may be disposed of expeditiously and till
     the disposal of the objection the revisionist shall not be
     arrested."
                                                                        F
                                               (emphasis added)

   7. 1st respondent filed objections before the learned
Magistrate on 5.3.2004 with a prayer for recalling the
summoning order dated 15.1.2004.
                                                                        G
    8. 1st respondent then filed an application, Criminal
Miscellaneous Application 133306 of 2004, in the disposed of
Criminal Miscellaneous Writ Petition No. 5877 of 2003. The
High Court allowed the application and passed the following
order on 26.8.2004:                                                     H
    832       SUPREME COURT REPORTS                   [2012] 9 S.C.R.

A              "Application is allowed. The accused was directed
          to deposit a sum of Rs.2,000/- per month until the
          conclusion of trial.

                  Since the payment is to be made till the end of trial.
          We feel it expedient to stay their arrest until the conclusion
B
          of trial."

                                                    (emphasis added)

    In that application, appellant was not made a party and the
c Court practically reviewed its earlier order dated 25.9.2003 and
    extended the stay of arrest until the conclusion of the trial.
    Earlier, by order dated 25.9.2003, the High Court had directed
    stay of arrest till the conclusion of the investigation or
    submission of any report under Section 173 CrPC and later
0   vide order dated 26.8.2004, it was ordered that the 1st
    respondent should not be arrested until the conclusion of the
    trial. Against this order of the High Court, this appeal has been
    preferred by the appellant-wife.

          9. Shri Shiv Ram Sharma, learned counsel appearing for
E   the appellant, submitted that the High Court has committed a
    grave error in entertaining the criminal miscellaneous
    application in a disposed of criminal miscellaneous writ petition
    and granting relief to 1st respondent. Learned counsel
    submitted t~t the practice of filing miscellaneous application
F   in disposed of writ petitions are on the rise, in spite of the fact
    that this practice has been deprecated by this Court in various
    judgments. Reference was made to the judgment of this Court
    in Hari Singh Mann v. Harbhajan Singh Bajwa and Others
    (2001) 1 sec 169. Learned counsel further submitted that the
G   High Court, by granting stay of arrest, is depriving the trial
    Courts of its power to issue orders under Section 439 CrPC.
    Learned counsel also submitted that the order of the High Court
    is also interfering with the powers of the Family Court in passing
    appropriate orders in the application filed under Section 125
H   CrPC.
              NAZMA v. JAVED @ ANJUM                         833
              [K.S. RADHAKRISHNAN, J.]
     10. Shri Arvind Kumar, learned counsel appearing for the       A
respondent, submitted that the High Court has only granted stay
of the arrest of 1st respondent till the conclusion of the trial,
consequently, no prejudice has been caused to the appellant.
Further, it was also pointed out that 1st respondent is
depositing the amount of Rs.2,000/- per month in the Court of       B
Chief Judicial Magistrate, Agra, as directed by the High Court
and that appellant has made an application for withdrawal of
the said amount as well. Further, it was also stated that since
the appellant was not a party to the Criminal Writ Petition No.
5877 of 2003 as well as in Criminal Miscellaneous Application       c
No. 133306 of 2004, this appeal preferred by the appellant is
not maintainable.

      11. We are of the view that the High Court has committed
a grave error in entertaining the criminal miscellaneous
appJication No. 133306 of 2004 in a disposed of Criminal Writ       D
Petition No. 5877 of 2003. Criminal Writ Petition No. 5877 of
2003 was disposed of on 25.9.2003 directing that the 1st
respondent should not be arrested until the conclusion of the
investigation or submission of any report under Section 173
CrPC. On an application filed by the 1st respondent in that writ    E
petition, the High Court later passed an order on 26.8.2004
stating that the petitioner therein (1st respondent) be not
arrested until the conclusion of the trial. The practice of
entertaining miscellaneous applications in disposed of writ
petitions was deprecated by this Court in Hari Singh Mann           F
(supra). Reference to the following paragraph of that judgment
is apposite:

          "8. We have noted with disgust that the impugned
    orders were passed completely ignoring the basic                G
    principles of criminal law. No review of an order is
    contemplated under the Code of Criminal Procedure. After
    the disposal of the main petition on 7-1-1999, there was
    no lis pending in the High Court wherein the respondent
    could have filed any miscellaneous petition. The filing of a    H
    834       SUPREME COURT REPORTS                   [2012] 9 S.C.R.


A         miscellaneous petition not referable to any provision of the
          Code of Criminal Procedure or the rules of the court,
          cannot be resorted to as a substitute of fresh litigation. The
          record of the proceedings produced before us shows that
          directions in the case filed by the respondents were issued
B         apparently without notice to any of the respondents in the
          petition. Merely because Respondent 1 was an Advocate,
          did not justify the issuance of directions at his request
          without notice of the other side. The impugned orders
          dated 30-4-1999 and 21-7-1999 could not have been
c         passed by the High Court under its inherent power under
          Section 482 of the Code of Criminal Procedure. The
          practice of filing miscellaneous petitions after the disposal
          of the main case and issuance of fresh directions in such
          miscellaneous petitions by the High Court are unwarranted,
          not referable to any statutory provision and in substance
D
          the abuse of the process of the court."

        12. We are sorry to note that in spite of the clear
  pronouncement of law by this Court, still, the High Courts are
  passing the similar orders, which practice has to be
E deprecated in the strongest terms. Of late, we notice that the
  High Courts are entertaining writ petitions under Articles 226
  and 227 of the Constitution, so also under Section 482 CrPC
  and passing and interfering with various orders granting or
  rejecting request for bail, which is the function of ordinary
F Criminal Court. The jurisdiction vested on the High Court under
  Articles 226 and 227 of the Constitution as well as Section 482
  CrPC are all exceptional in nature and to be used in most
  exceptional cases. The jurisdiction under Section 439 CrPC is
  also discretionary and it is required to be exercised with great
G care and caution.
         13. We are of the view that the High Court has committed
    a grave error in not only entertaining the criminal miscellaneous
    application in a disposed of writ petition, but also passing an
    order not to arrest the 1st respondent till the conclusion of the
H
              NAZMA v. JAVED@ ANJUM                          835
              [K.S. RADHAKRISHNAN, J.]
trial. Grant of bail or not to grant, is within the powers of the   A
regular Criminal Court and the High Court, in its inherent
jurisdiction, not justified in usurping their powers. Once the
criminal writ petition has been disposed of, the High Court
becomes functus officio and cannot entertain review petitions
or miscellaneous applications except for carrying out               B
typographical or clerical errors. In the instant case, the High
Court has entertained a petition in a disposed of criminal writ
petition and granted reliefs, which is impermissible in law.

     14. We are, therefore, inclined to allow this appeal and set   C
aside the impugned order passed by the High Court, with costs
of Rs.25,000/- to be paid by 1st respondent to the appellant,
within a period of two months.

K.K.T.                                         Appeal allowed.