Holding

The Supreme Court held that converting a Section 482 application into a bail application under Sections 438/439 without serving notice to the opposite party is not approved and the order granting interim protection is set aside.

Summary

The appellant Savitri Goenka challenged a Delhi High Court order that had converted a criminal miscellaneous petition filed under Section 482 of the Code of Criminal Procedure (CPC) into a bail application under Section 438 CPC and granted interim protection, without serving notice on her. The High Court had earlier directed service of notice and impleadment of the appellant, which was not complied with, yet proceeded to grant bail protection to the respondent. The Supreme Court examined whether such conversion without service and hearing is permissible and whether the filing of a charge‑sheet or the grant of regular bail affects the validity of the interim order. It held that the practice of converting a Section 482 application into a bail application under Sections 438/439 without proper notice is not approved by this Court and violates judicial propriety. Consequently, the impugned order was set aside and the matter remanded to the High Court for fresh consideration. The appeal was partly allowed.

Issues considered

Can a High Court convert an application filed under Section 482 CrPC into a bail application under Section 438 or 439 CrPC without serving notice to the opposite party?
Is such conversion permissible under the principles of judicial propriety and procedural fairness?
Does the filing of a charge‑sheet or the grant of regular bail affect the validity of an interim protection order issued under a converted bail application?

Legislation cited

Code of Criminal Procedure, 1973s. 438, s. 439, s. 482

Subjects

judicial proprietyconversion of applicationSection 482 CrPCSection 438 CrPCbailservice of noticeinterim protectioncriminal procedureappealremand

Judgment

~
A SAVITRI GOENKA
v.
KUSUM LATA DAMANI AND ORS.

NOVEMBER 2, 2007
B
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.] j_
A

Judicial propriety-High Court converting application u/s 482
Cr.P. C to one u/s 438 Cr.P. C without service on the complainant and
c granting interim protection-Proprietyfor grant ofreliefinfa_vour of
accused-Held: Not proper-Filing of charge sheet or grant of bail
of no consequence-Matter remitted back to High Court for fresh
consideration-Code ofCriminal Procedure, 1973-ss 482 and 438.

D Respondent filed Criminal Misc. Petition. High Court directed
the respondent to serve the appellant but the directions were not .J.,
complied with. Thereafter, High Court directed the respondent to 1
implead the appellant. Meanwhile, Additional Sessions Judge
dismissed the bail application on the ground that the relief had
E already been obtained by her from High Court. Subsequently, without
service on the appellant, the High Court converted the application
under s. 482 Cr.P.C to one for bailin terms of s. 438 Cr.P.C and
granted interim protection. Hence the present appeal. i>

Partly allowing the appeal, the Court
F
HELD: The practice of converting applications filed under
~
section 482 Cr.P.C. to one for bail in terms of section 438 or 439
Cr.P.C. has not been approved by this Court. Additionally, direction
was given for issuance of notice and service on the appellant which
has not been done by respondent no.I-accused. The fact that the
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charge-sheet has bee.n filed or bail has been granted is really of no ',___
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consequence because of the fact that relief in the regular bail ·-)..--
application appears to have been granted to respondent no.1 in view
of the interim protection given by High Court to the accused by the •
..I
I

H 918
~
/
,,.
SAVITRI GO ENKA v. KUSUM LATA DAMANI 919
[PASAYAT,J.]
-r--
impugned order. The impugned order is set aside and the matter is A
remanded for fresh consideration. [Paras 4 and 5] [920-B-D]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1508 of 2007.
From the Judgment and final Order dated 22.09.2005 of the High B
"'> Court of Delhi at New Delhi in Criminal Misc. Petition No. 2945 of2004.
Jayant K. Mehta, Vasudha J. Mehta and Himinder Lal for the
Appellant.
Siddharth Luthra, Rajnish Chopra, Dhruv Kapur, Anurag, Anil c
Katiyar, Abha R. Sharma and Subramonium Prasad for the Respondents.
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Leave granted.
D
/- 2. Though many points were urged in respect of the appeal, we find
t
that the impugned order of the High Court cannot be maintained on one
ground. Though it had issued notice to the appellant, the matter was
disposed of without hearing the appellant. It appears that respondent no. I
had filed the bail application, that is, Criminal Misc. Petition No.2945/ E
2004 on 10.12.2004. The court directed service on the appellant. There
is no dispute that there was no service of notice on the appellant.
According to the appellant, on learning about the proceedings, Criminal
Misc. Application No.4653/05 was filed in Criminal Miscellaneous
Application No.2945/04. The High Court was pleased to issue notice on
F
J 14.7.2005 on the said application and the High Court directed the accused
to implead the appellant. Learned Additional Sessions Judge dismissed
. the bail application of the accused, respondent No. I on the ground that
relief had already been obtained by her from the High Court. On
22.9.2005, without service on the appellant, the High Court converted
G
the application under Section 482 of the Code of Criminal Procedure,
~- 1973 (in short 'Cr.P.C. '),to one under Section 438 Cr.P.C. and granted
interim protection.
3. Learned counsel for the appellant submitted that several facts were
H
-/
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920 SUPREME COURT REPORTS [2007] 11 S.C.R.
--t
A suppressed. By giving wrong impression about the factual scenario, the
appellant persuaded the High Court to pass the impugned order. In
response, learned counsel for the respondent submitted that there is in
fact no infirmity in the order. ~ any event, the charge sheet has been filed
and respondent no. I -accused has already been granted regular bail. A
B copy of the order passed on the bail application has been filed for records.
>
-4.,
4. It is to be noted that the practice of converting applications filed
under Section 482 Cr.P.C. to one for bail in terms of Section 438 or 439
Cr.P.C. has not been approved by this Court. Additionally, direction was
given for issuance of notice and service on the appellant which has not
c been done by respondent no. I-accused. The fact that the charge-sheet
has been filed or bail has been granted is really of no consequence
because of the fact that relief in the regular bail application appears to
have been granted to respondent no. I in view of the interim protection
given by the High Court t_o the accused by the impugned order.
D r
5. In view of the aforesaid position, the impugned order is set aside --\ r
1
and the matter is remanded for fresh consideration. We make it clear that
we have not expressed any opinion on the merits of the case. To avoid
unnecessary delay let the parties appear without further notice on 23rd
E November, 2007, before learned Single Judge. If any party does not
appear on that day, needless to say learned Single Judge shall deal with
the matter in accordance with law. Learned Chief Justice ofthe High Court /-
is ·requested to direct listing of the matter before learned Single Judge }

according to the roaster.
F 6. The appeal is allowed to the aforesaid extent. )
N.J. Appeal partly allowed.

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