Supreme Court of India
PANFUL NESSAversusMD. MIRAJ ALI AND ORS.
- Citation
- 2008 INSC 789
- Decided
- 9 July 2008
- Disposal
- Case Allowed
- Bench
- ARIJIT PASAYAT
Holding
The jurisdiction under Section 482 of the Code of Criminal Procedure cannot be extended to grant bail; the High Court's direction for bail is set aside.
Summary
The Supreme Court reviewed a petition under Section 482 of the Code of Criminal Procedure filed by ten accused who had been declared absconders and against whom non‑bailable warrants were issued for a murder case. The Gauhati High Court, instead of merely examining the propriety of the warrants, directed that the accused be released on bail upon surrender. The Supreme Court held that the High Court had not considered the merits, ignored the charge‑sheet finding that the respondents were absconders, and wrongly exercised its Section 482 jurisdiction to grant bail, a power that does not extend to such relief and is not available under Section 438. Accordingly, the direction for bail was set aside and the respondents were ordered to appear before the trial court where any bail application would be decided in accordance with law. The appeal was allowed.
Issues considered
- Whether a petition under Section 482 CrPC can be used to direct the release of absconding accused on bail.
- Whether the High Court erred in not considering the merits of the case while granting bail.
- Whether the jurisdiction under Section 482 can be extended to grant bail, and whether the case falls within Section 438 CrPC.
Legislation cited
- Code of Criminal Procedure, 1973s. 438, s. 482
Subjects
Criminal ProcedureSection 482Section 438BailNon‑bailable warrantAbscondingJurisdictionHigh CourtSupreme Court
Judgment
[2008] 10 S.C.R. 548
k
A PANFUL NESSA
v.
. MD. MIRAJ ALI AND ORS.
(Criminal Appeal No. 1035 of 2008)
JULY 9, 2008
B
[DR. ARIJIT PASAYAT AND P.SATHASIVAM, JJ.]
Code of Criminal Procedure, 1973 : s. 482 - Absconding
accused :-- Issuance of non-bailable warrants against - Peti-
c tion for quashing of proceedings - High Court directing re-
/ease on bail - Correctness of - Held: Not correct since mer-
its of the case were not considered - Moreover it was not a
case under s.438 - Jurisdiction of s.482 cannot be extended
to grant of bail in the manner done.
D Pursuant to an FIR lodged against 1O· persons includ-
ing respondent No. 1 to 9 for committing murder of hus- t·
band of appellant and her husband's uncle, charges were
framed. Respondents No. 1 to 9 were shown as absconders.
SDJM issued non-bailable warrants against respondents.
E They filed petition under s.482 Cr.P.C. before High Court
praying for setting aside the order directing issuance of
non-bailable warrants. High Court passed direction for re-
lease of respondents on bail. Hence the present appeal.
Allowing the appeal, the Court
F -,.l
HELD :1. The High Court has not considered the
merits of the case. It completely overlooked the fact that
respondents 1 to 9 have filed a petition under s.482 Cr.P.C.
Even if the High Court found that there was some lapse
G on the part of the SDJM in dealing with the matter, that
could not haye been a ground for directing release of the
respondents on bail, that too in a petition under s.482 "'('
Cr.P.C. It was not even a case under s.438. Even if it was
j
so, the impugned directions could not have been given
t
H 548
PANFUL NESSA v. MD. MIRAJ ALI, AND ORS. 549
[DR. ARIJIT PASAYAT, J.]
·>..
for releasing the respondents 1 to 9 in the manner done. A
The jurisdiction under s.482 Cr.P.C. cannot be extended
' to grant of bail in the manner done. The High Court was
clearly in error by holding that there was no material to
show that the respondents 1 to 9 were absconders. By
so observing, the High Court completely lost sight of the
8
fact that in the charge sheet filed respondents 1 to 9 were
shown as absconders. Similarly in the orders dated
1.6.2004 and 4.6.2004 the Chief Judicial Magistrate and
SDJM had clearly mentioned that 11 accused persons
were absconders. This was obviously with reference to
the charge sheet filed. [Para 7] (551 G-H, 552-A-C] c
2. The High Court had completely foreclosed con-
sideration of the application for bail. It also did not exam-
ine the question as to the desirability of respondents 1 to
9 being released on bail. M~rely because according to the
"~' High Court the SDJM had not followed the directions in
D
its proper perspective that could not have been a ground
for directing release of respondents 1 to 9 on bail. The
direction contained in the impugned order regarding grant
of bail to respondents 1 to 9 is set aside. [Para 8] (552 E-F]
E
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 1035 of 2008
From the Order dated 16/8/2006 of the Gauhati High Court
in Criminal Petition No. 116/2006
•J.:
lrshad Ahmad for the Appellant. F
M.C. Dhingra, Arna Das, Shakeel Ahmad, J.R. Luwang,
Momota Oimam and Mis. Corporate Law Group for the Respon-
dents.
Dr. ARIJIT PASAYAT, J. 1. Leave granted. G
,lo, ~- .... 2. Challenge in this appeal is to the order passed by a
' learned Single Judge of Guwahati High Court directing that the
respondents 1 to 9 shall be released on bail on· surrendering
before the learned Chief Judicial Magistrate, Darrang.
H
550 SUPREME COURT REPORTS [2008] 10 S.C.R.
A 3. Background facts in a nutshell are as follows:
A First Information Report (in short the 'FIR') was lodged
on 16.9.1996 stating that 10 persons including the respondents
1 to 9 were responsible for the homicidal death of.the husband
of the informant, the appellant herein and her husband's uncle
B Mr. Hanif Ali. After completion of investigation charge sheet No.1 /
2004 dated 28.2.2004 was filed by the investigating officer,
Tejpur River Police Station, district Sonitput. Eleven persons
were shown as absconders including respondents 1 to 9. If is
the case of the appellant that in spite of best efforts the police
c officials could not trace out the respondents. Learned SDJM
issued non bailable warrants against the respondents. The re-
spondents were declared as proclaimed offenders. On
22.12.2005 on the strength of warrant of arrest one of the ac-
cused persons namely Rustom Ali was arrested and he was
remanded to judicial custody by learned SDJM. Subsequently,
0
the respondents moved the High Court in Criminal Petition
No.18/2006 and prayed that the order directing issuance of non
bailable warrants may be set aside. They also prayed that in
the event of their appearance before the learned SDJM they
may be released on bail. The High Court disposed of the said
E petition by order dated 24.3.2006 directing that in the event of
the respondents making an application for grant of bail, the
same shall be disposed of in accordance with law. A protection
for the period of seven days was granted so that they could
appear before the concerned Court. Undisputedly, they did not
F appear within the stipulated time and moved the High Court for
extension .of time. The High Court granted the time till 18.4.2006
and directed the respondents to appear before the learned
SDJM. On 17.4.2006 the learned SDJM was on leave and,
therefore, it was placed before the learned CJM who directed
the matter to be placed on 18.4.2006 before the learned SDJM.
G There is some amount of confusion as to whether really the re-
spondents appeared on 18.4.2006. Be that as it may, a petition
under Section 482 of the Code of Criminal Procedure, 1973 (in
·.
,.
...-,.
short the 'Code') was filed. The High Court passed the impugned
order where after taking exception to certain acts of learned
H
PANFUL NESSA v. MD. MIRAJ ALI AND ORS. 551
[DR. ARIJIT PASAYAT, J.]
SDJM, the directions were given. A
4. Learned counsel for the appellant submitted that the High
Court seems to have completely lost sight of the fact that by
. several orders the trial Court had noted that the respondents
were absconders. Therefore, the High Court could not have
~ given a direction for release of the respondents on bail without B
even consideration of the merits of the case on surrender be-
fore the learned SDJM.
5. Learned counsel for the respondents on the other hand
submitted that reading in isolation the order of tlie learned
SDJM, the learned Single Judge may appear to be wrong but c
when the entire material was placed on record before it, the
High Court's directions cannot be faulted. It is submitted that
pursuant to the directions of the High Court the accused surren-
dered before the learned Chief Judicial Magistrate and in terms
(
of the High Court's order they have been granted bail. D
~
6. The impugned directions as contained in the impugned
order read as follows:
"Considering therefore the matter in its entirety and in the
interest of justice, GR Case No.444/99 is hereby transferred E
to the learned Chief Judicial Magistrate, Darrang. The
accused-petitioners are hereby directed to appear in the
Court of the learned Chief Judicial Magistrate, Darrang,
Mangaldai, on or before 23.8 .2006 and if, on their
appearance in the learned Court below, the petitioners
'"io- F
apply for bail they shall be allowed to go on bail of
Rs.10,000/- each with two local sureties, each of the like
amount, subject to the satisfaction of the learned Court
below. This direction for bail is further subject to the
condition that the petitioners shall keep appearing in the
learned Court below as may hereafter be directed by it." G
7. It is clear that the High Court has not considered the
merits of the case. It completely overlooked the fact that respon-
dents 1to9 have filed a petition under Section 482 of the Code.
Even if the High Court found that there was some lapse on the
part of the learned SDJM in dealing with the matter, as noted by H
552 SUPREME COURT REPORTS [2008] 10 S.C.R.
"J(t
A the High Court that could not have been a ground for directing
release of the respondents on bail, that too in a petition under
Section 482 of the Code. It was not even a case under Section
438. Even if it was so, the impugned directions could not have
been given for releasing the respondents 1 to 9 in the manner
done. The jurisdiction under Section 482 of the Code cannot
B
be extended to grant of bail in the manner done. There was not
even consideration of the merits of the· case. The High Court
was clearly in error by holding that there was no material to show
that the respondents 1 to 9 were absconders. By so observing,
.,
the High Court completely lost sight of the fact that in the charge
c sheet filed respondents 1 to 9 were shown as absconders. Simi-
l
larly in the orders dated 1.6.2004 and 4.6.2Q04 the learned Chief
Judicial Magistrate and learned SDJM had clearly mentioned
that 11 accused persons were absconders. This was obviously
D
with reference to the charge sheet filed.
8. Learned counsel for the accused respondents 1to9 sub-
,. )
mitted that the trial is in progress and there is no allegation of any
misuse of liberty. That question need not be considered in the
present proceedings because the impugned directions of the
High Coui:t are unsustainable. We therefore set aside that part of
E the order directing release of respondents 1 to 9 on bail. The
High Court had completely foreclosed consideration of the appli-
cation for bail. It also did not examine the question as to the de-
sirability of respondents 1 to 9 being released on bail. Merely
because according to the High Court the learned SDJM had not
F followed the directions in its proper perspective that could not
have been a ground for directing release of respondents 1 to 9
on bail. We, therefore, set aside the direction contained in the
impugned order regarding grant of bail to respondents 1 to 9.
Let the respondents appear before the concerned Court where
the trial is in progress. If any application for bail is made, the
G same shall be considered in its proper perspective by the con-
cerned Court. We express no opinion on the merits of the case.
9 . The appeal is allowed.
D.G. Appeal allowed .
H
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