Holding

An ex parte interim order directing bail that operates as a final order is impermissible and must be set aside.

Summary

Shree Baidyanath Ayurved Bhawan Pvt. Ltd. filed a FIR and the respondents applied for anticipatory bail. The Punjab & Haryana High Court, by an ex parte order dated 27‑12‑2005, directed the Chief Judicial Magistrate to release the respondents on bail, effectively making the interim order a final one. The Supreme Court held that such an ex parte interim order is impermissible because an interim order must be subject to a final order and the court must consider all relevant factors before granting anticipatory bail under CrPC s.438 and s.439. Consequently, the Supreme Court set aside the High Court’s order and remitted the matter for fresh consideration of the bail applications. The appeal was allowed.

Issues considered

Whether an ex parte interim order directing release on bail can be treated as a final order under the Code of Criminal Procedure.
Whether the High Court erred in granting anticipatory bail without applying its mind to the stage of investigation and conduct of the accused.

Legislation cited

Code of Criminal Procedure, 1973s. 438, s. 439
Companies Act, 1956

Subjects

anticipatory bailinterim orderex parte orderbail jurisprudenceCrPCprocedural law

Judgment

,-

[2009] 12 S.C.R. 326

A SHREE BAIDYANATH AYURVED BHAWAN PVT. LTD.
v.
STATE OF PUNJAB & ORS.
(Criminal Appeal No. 1412 of 2009)

AUGUST 4, 2009
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]

Interim order: Bail application - Ex parte interim order
passed by High Court directing Chief Judicial Magistrate ... .
c (CJM) to release the respondents on bail - Held: High Court
should not have passed the said order which for all intent and
purport was a final one at that stage - After such an order, CJM
had no other option but to grant bail - Interim order was
thereby made final order which is impermissible in law - An
D interim order is always passed subject to the final order- Code
of Criminal Procedure, 1973 - ss.438, 439. ~·

An FIR was lodged against respondent. He filed an
.,.
application for bail. High Court by an ex parte order dated
E
27 .12.2005 directed that the respondent may be released ..
on bail on their appearance before the CJM. Appellant
filed an application before the High Court praying for
vacation of an ex parte interim order dated 27.12.2005,
which was dismissed. Hence the appeal. .... ~

F Allowing the appeal and remitting the matter to High
Court, the Court

HELD: High Court committed a serious error in
passing an ex parte interim order on 27.12.2005 directing
G the Chief Judicial Magistrate to release the respondents
on bail. The High Court should not have passed the said -A~

order which for all intent and purport was a final one at
that stage. Respondents evidently took undue advantage ...
of the said ex parte interim order. When such an order
H 326
SHREE BAIDYANATH AYURVED BHAWAN PVT. LTD. 327
v. STATE OF PUNJAB & ORS.
was passed, the Chief Judicial Magistrate had no other A
option but to grant them bail. The interim order has
thereby been made a final order which is impermissible
in law. An interim order is always passed subject to the
final order. Before a final order granting anticipatory bail
is passed, the High Court was required to apply its mind B
not only with regard to the stage in which the investigation
was pending but several other factors including the
}' ~
conduct of the accused. [Paras 11 and 121 [329-G-H; 330-
8-C]

CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal c
No. 1412 of 2009.

From the Judgment & Order dated 27.12.2005 of the High
Court of Punjab & Haryana at Chandigarh in Crl. Misc. No.
• -f 71691-M of 2005 and Order dated 28.4.2006 in Crl. Misc. No . D
,., 2717-19 of 2006 in Crl. Misc. Mo. 71691-M of 2005.

Sunil Gupta, T.S. Doabia, Rishi Maheshwari, Shally Bhasin
Maheshwar.i, Vikramjeet Banerjee, Anne Mathew, B.
Ranganathan, Atul Shankar Mathur, Shruti Verma (for Khaitan
& Co.), Anil Grover, Manish Kumar, Pramod Swarup, V.P. E
Singh, Anil Kumar Jha, Sunita Sharma, Subhash Kaushik, Anil
~ ~
Katiyar (for D.S. Mahra), J.S. Bhatti, Shree Pal Singh, Ajay Pal,
Kuldip Singh, Javed Mahmud Rao for the appearing parties.

The Judgment of the Court was delivered by F

S.B. SINHA, J. 1. Leave granted.

2. Appellant~ShreeBaidyanath Ayurved Bhawan Pvt. Ltd.
(for short, 'the Company) is a company registered under the
.... ~ Indian Companies Act, 1956. It appointed M/s. S. Bhatia G
~
Enterprises, Ludhiana (for short, 'the firm') as its Carrying and
Forwarding Agent under a contract. The company through its
General Manager, Y.P. Sharma, lodged a First Information
Report before the PS Kqtwali, Jhansi on or about 2.11.2001.
H
328 SUPREME COURT REPORTS [2009] 12 S.C.R.

A The case was ultimately transferred to the Court of CJM l
Chandigarh by this Court by an order dated 24.2.2003.

3. The respondents herein filed an application for grant of
anticipatory bail. By reason of an order dated 25.2.2005 the
High Court, while granting anticipatory bail for one month asked
B
the respondents to approach the Court of CJM to seek for
regular bail. Respondents filed an application seeking
correction of a typographical error in the order dated 25.2.2005
which was allowed by reason of an order dated 24.3.2005. ... ~

c The respondents instead of appearing before the Chief
Judicial Magistrate, filed an application for regular bail before
the Additional Sessions Judge, Chandigarh. The learned
Additional Sessions Judge, by order dated 19.4.2005 directed
them to appear before the Chief Judicial Magistrate.
D
4. The respondents filed an application for regular bail ~·

before the High Court. They also sought for stay of execution •
of non-bailable warrants against them. Both the applications
were dismissed by tht:l High Court vide its order dated >
19.8.2005.
E
Respondents filed an application seeking extension of
time for grant of pre-arrest bail. Notice was issued in the said
application. ".
F 5. On or about 6.12.2005, non-bailable arrest warrant was
issued against the respondents on their failure to appear before
learned Chief Judicial Magistrate.

6. Respondents filed an application for stay of the non-
bailable warrant of arrest. Notice was issued in the said
G application. Thereafter, the respondents filed another -A.,

application before the High Court, inter alia, praying for grant
of pre-arrest bail and sought for stay of the said order dated
6.12.2005.

H Another application was filed by the respondents seeking
SHREE BAIDYANATH AYURVED BHAWAN PVT. LTD. 329
v. STATE OF PUNJAB & ORS. [S.B. SINHA, J.]

bail. The High Court vide an ex parte order dated 27.12.2005 A
directed that the respondent may be released on bail on their
appearance before the Chief Judicial Magistrate. Learned
Chief Judicial Magistrate granted them bail on or about
2.1.2006. The said order has not been brought on record.
B
7. On or about 5.1.2006, the Investigating Officer filed his
objections before the High Court of Chandigarh questioning the
validity of the ex parte order granting bail to the respondents.
~
+
8. Appellant filed an application before the High Court on
9.1.2006 praying for vacation of the ex parte interim order. c
9. On 28.4.2006, counsel for the accused withdrew all the
petitions filed by them stating that since all the accused have
furnished regular bail bonds in the High Court of Chandigarh
pursuant to order dated 27.12.2005, the accused need not D
~ press the pending petitions. The High Court by reason of the
~ impugned judgment dismissed the application for cancellation·
of interim order dated 27.12.2005.

10. The appellant is, thus, before us.
E
11. For the purpose of grant of anticipatory bail, the Court
of Sessions or the High Court must take into consideration the
.~ "' ingredients therefor as laid down in Section 438 of the Code
of Criminal Procedure. Ordinarily, an order granting anticipatory
bail should not be for an indefinite period, particularly when the F
FIR had been in a police station of another State.

The High Court, in our opinion, thus, committed a serious
error in passing an ex parte interim order on 27.12.2005
directing the Chief Judicial Magistrate, Chandigarh to release
G
"·"' the respondents on bail. The High Court should not have passed
the said order which for all intent and purport was a final one
,.
at that stage. Respondents evidently took undue advantage of
the said ex parte interim order. When such an order was
passed, the Chief Judicial Magistrate had no other option but
H
330 SUPREME COURT REPORTS [2009] 12 S.C.R.

A to grant them bail. The High Court, therefore, committed a
manifest error in allowing the respondents not to press their
application. The High Court ought to have considered the effect
thereof, namely, the interim order has thereby been made a final
order which is impermissible in law.
B
12. An interim order is always pnssed subject to the final
order. Before a final order granting anticipatory bail is passed,
the High Court was required to apply its mind not only with
regard to the stage in which the investigation was pending but ~

several other factors including the conduct of the accused.
c
13. We, therefore, arE~ of the opinion that the impugned
order cannot be sustained. It is set aside accordingly and the
matter is remitted to the High Court for consideration of the
appellant's application for cancellation of interim bail as also
D the respondents' application for grant of anticipatory bail.
,, ~

14. For the aforementioned purpose, the order dated
28.4.2006 permitting the respondents not to press their
applications is also set aside. The High Court must consider
the matter afresh and upon hearing the parties and upon taking
E
into consideration all other relevant factors dispose of the matter
as expeditiously as possible and preferably within a period of
four weeks from the date of communication of this order. "' .
D.G. Appeal allowed.