1. In the present appeal, after the appellant was released on bail, an interlocutory application i.e. I.A. No. 2225 of 2018 was filed on behalf of the
informant, with a prayer to modify/set-aside the earlier order dated 30-05-2018 passed by a Single Vacation Judge, whereby the appellant was
directed to be released on bail during pendency of the appeal and there was order for suspension of sentence in a trial in which the appellant has been
sentenced to undergo imprisonment for life. The interlocutory application was filed under Section 389(1) of the Code of Criminal Procedure, 1973
(hereinafter referred to as ‘Cr.P.C.’). After filing of the interlocutory application, the matter was listed under the heading “For Orders†on
16-08-2018, however Sri Subodh Kumar Jha, learned counsel for the appellant, who had received interlocutory application, raised objection on the
point of maintainability of the present interlocutory application and on his prayer, the appeal was adjourned. On 30-08-2018 also, the case was
adjourned on the request of learned counsel for the appellant for filing reply to the interlocutory application and on 13-09-2018, again on same request,
the appeal was adjourned. Thereafter, on behalf of the appellant, reply has been filed on 13th September, 2018.
2. Sri Subodh Kumar Jha, learned counsel for the appellant, at the very outset, has raised objection on the point of maintainability of the present
interlocutory application on the plea that interlocutory application, filed under Section 389(1) of the Cr.P.C., is not maintainable. By way of referring to
3rd proviso to Section 389(1) of the Cr.P.C., Sri Jha has argued that in such cases, only Public Prosecutor can file an application for cancellation of
bail. Accordingly, he submits that the present interlocutory application is fit to be rejected, since it has not been filed by Public Prosecutor, rather it has
been filed on behalf of the informant.
3. Sri Jha, has further argued that in view of the Chapter II Rule 4 of Patna High Court Rules (hereinafter referred to as ‘High Court Rulesâ€), a
Single Vacation Judge is fully entitled to pass order of interim bail during pendency of the appeal. The present appeal was filed during Annual Summer
Vacation of 2018 and Hon’ble Single Judge, while admitting the appeal and summoning lower court record, has passed order for suspending
sentence and granting bail to the appellant during pendency of the appeal. Sri Jha has argued that Hon’ble Vacation (Single) Judge was well-
competent to pass interim order, as per provisions of High Court Rules. He further submits that in view of Annexure - C to the reply filed by the
appellant, the Hon’ble Single Judge was well authorised by Hon’ble the Chief Justice to hear the appeal during the vacation. According to Sri
Jha, if the Vacation Court has already granted bail, there is no provision for its confirmation by Division Bench. It has also been argued that even if,
there is any error in the order whereby appellant was granted bail, as per judicial discipline, the same Bench is entitled to review or recall its order and
that may not be considered by another Bench. In support of his submission, learned counsel for the appellant has placed reliance on a judgment of the
Hon’ble Supreme Court reported in 2018 (9) SCALE (M/S. Goel Ganga Developers India Pvt. Ltd. Vs. Union of India through Secretary Ministry
of Environment and Forests & Ors.) and he has specifically referred to paragraph - 38 of the judgment, which is quoted hereinbelow:
“38. A perusal of the above judgment leaves no manner of doubt that this Court has held that in terms of Order XLVII Rule 5 of
CPC, a review should normally be heard by the same Bench which passed the original order. We may reiterate the reasons given by
this Court. These are:-
1) The judges who heard the matter originally have applied their mind and would know best the facts and legal position;
2) They will be in the best position to appreciate the matter in issue when a review is filed;
3) If the matter goes before another Bench that Bench will have to virtually hear the matter afresh;
4) Most importantly, when the matter goes to a new Bench the members of the new Bench may go by their own perspective and
philosophy which may be totally different to that of the Bench which originally heard the matter.
We may again re-emphasize that judicial discipline, judicial traditions and consistency in pronouncements require that the Bench which
heard the matter originally should hear the review petition unless it is virtually impractical for the original Bench to hear the matter, or
where the members of the original Bench recuse.â€
4. Sri Jha has further tried to persuade the Court that order for grant of bail by the Hon’ble Vacation Judge is an interim order, which is within the
competence of the Vacation Court, as provided under the High Court Rules. It has also been highlighted that the appellant was all along on bail and in
view of law laid down by the Apex Court, in such cases, an accused, even after conviction, is entitled to be released on bail. He also tried to pursuade
the Court that on merit, the appellant was entitled to be granted bail and as such, Hon’ble Single Vacation Judge has rightly passed the order for
releasing the appellant on bail. In sum and substance, it has been argued that neither the interlocutory application is maintainable nor this Court is
competent to cancel the order passed by Hon’ble Single Vacation Judge.
5. Sri Gopal Govind Mishra, learned counsel for the informant has argued that the informant in the present case is none else but a victim whose father
was done to death by accused persons, in which, accusation against the appellant was of order-giver, who was instigator and on whose instigation, one
of the co-convict Lalu Yadav had given shot of firing on the head of his father and his father died instantaneously. He submits that the informant,
being victim, is well entitled to bring the fact to the notice of the Division Bench regarding an order of bail granted by the Vacation Judge in a matter,
in which, the appellant was sentenced to undergo imprisonment for life. He submits that as per High Court Rules, after conviction, if one is sentenced
for a period of more than ten years, such appeal is required to be heard by the Division Bench. During vacation, there is some exception only to the
extent of passing an interim order. According to learned counsel for the informant, the Vacation Judge though is entitled to pass order for grant of bail
in a matter, in which, one has been convicted for more than ten years, but such order is to be passed as an interim measure, not final.
6. Regarding maintainability of the interlocutory application, it has been argued that now, in view of amendment in Section 372 of the Cr.P.C., once a
victim is entitled to file an appeal against acquittal, certainly in a case of any illegality, he is entitled to bring those facts to the notice of this Court.
Learned counsel for the informant has argued that the Hon’ble Supreme Court in A.I.R. 2008 SC 35 (State of Punjab vs Deepak Mattu) has
already held that the High Court has got inherent power to correct any order and since by way of filing the interlocutory application, the fact regarding
an apparent jurisdictional error committed by the Single Vacation Judge has been brought to the notice of this Court, only on technicality or incorrect
levelling of provision, his interlocutory application may not be rejected.
7. Besides hearing learned counsel for the parties, we have perused the materials on record as well as provisions of law. Before proceeding, at the
very outset, it would be necessary to incorporate certain provision of the Patna High Court Rules.
8. Chapter-II of the Patna High Court Rules prescribes “Constitution of Benches and Powers of Benches and of the Registrarâ€. Rule-1 says that
the Single Judge is entitled to pass certain orders with some rider. Circumstances have been described in Rule-1, however; there are certain
exceptions. In this context, Chapter II, Rule 1 of the High Court Rules would be necessary to be incorporated, which is as follows:
“1. The following matters may be heard and disposed of by a Single Judge:-
(i) (a) A First Appeal from an order and any Cross-objection therein, irrespective of the date of institution of such Appeal or Cross-
objection.
(a) An appeal from an original decree arising out of a suit and any Cross-objection therein irrespective of the date of institution of such
Appeal or Cross- objection.]
(ii) A Second Appeal from a decree or order and any Cross-objection therein irrespective of the value of the Appeal or Cross-objection
and irrespective of the date on which such Appeal or Cross-objection was instituted.
(iii) [Omitted].
(iv) [Omitted].
(v) [Omitted].
(vi) [Omitted].
(vii) A motion to admit an application and an application when admitted:
(a) for an order under Section 22 or Section 23 of the Code of Civil Procedure or for an order under Section 24 of the same Code for
the transfer of a case from one Civil Subordinate Court to another;
(b) [Omitted]
(c) under Section 115 of the Code of Civil Procedure or under Section 25 of the Provincial Small Cause Courts Act, irrespective of
valuation and the date of filing of such application;
(d) Under Order XLIV Rule 1 of the Code of Civil Procedure arising out an appellate decree.
(viii) [Omitted]
(ix) [Omitted]
(x) A suit coming before the Court in the exercise of its ordinary or extra-ordinary original civil jurisdiction.
(xi) A proceeding under the Indian Companies Act, the Indian Trusts Act or the Indian Patents and Designs Act.
(xii) [Omitted].
(xiii) Any other application -
(a) which under these rules may be made to a Judge sitting alone;
(b) which under these rules is not expressly required to be made to a Bench of two or more Judges or to the Registrar;
(c) which is made in any matter within the jurisdiction of a Judge sitting alone and which is not otherwise expressly provided for.
(xiv) A case coming before the Court in the exercise of its ordinary or extra-ordinary original criminal jurisdiction, except the cases
under Section 15 of the Contempt of Courts Act, 1971.
(xv) - An appeal, application or reference under the Code of Criminal Procedure, other than -
(a) an appeal or reference in a case in which a sentence of death or of transportation of life has been passed.
(b) an appeal under Section 378 from an order of acquittal relating to an offence punishable with death or with imprisonment for life or
with imprisonment of either description for more than ten years and passed by a court competent to pass such sentence:
Provided that appeals under Section 378 pending in the High Court on the date this rule comes into force shall be heard and disposed
of in accordance with the rule as now amended;
(c) an appeal under Section 377 or a case in which notice has been issued under Section 401 to an accused to show cause why the
sentence should not be enhanced;
(d) an appeal, revision or reference in which a substantive sentence of more than ten years’ imprisonment has been passed:
Provided that all appeals, revisions, or references, pending in the High Court on the date this rule comes into force shall be disposed
of in accordance with the rules as now amended.
(e) [Renumbered as clause ‘d’]
(f) [Deleted].â€
9. Meaning thereby that normally Single Vacation Bench is not entitled to pass an order in appeal, in which, sentence is of death or transportation of
life or imprisonment for more than ten years. However, Rule - 4 of Chapter II gives certain power to be exercised by the Vacation Judge. Rule 4 is
quoted hereinbelow:
“4. Notwithstanding anything to the contrary contained in these rules, a Single Judge, while acting in long vacation as a Vacation
Judge, may issue notice or rule, as the case may be, in any criminal matter, and in such other matters, civil or under the Constitution,
as he may consider emergent, and may also pass interim orders regarding stay, injunction, bail and other reliefs, as may be deemed
fit.â€
10. Besides this, at this juncture, it is also necessary to incorporate Rule-10 of Chapter II of High Court Rules:
“10. Save as provided by law or by these rules or by an order of the Chief Justice every other case shall be heard by a Bench of two
Judges.â€
11. On examination of aforesaid provisions, it is evident that a Single Vacation Judge is entitled to pass only an interim order during vacation. Meaning
thereby that if an interim bail is granted by a Vacation Judge, it has to be confirmed by a regular Bench i.e. Division Bench, if matter pertains to be
adjudicated by the Division Bench.
12. On going through the order dated 30-05-2018, it is evident that the Single Vacation Judge, while admitting and summoning lower court record, has
passed order for suspending sentence during pendency of the appeal and also directed to release the appellant on bail. It would be better to
incorporate order dated 30-05-2018 passed by the Single Vacation Judge, which is as follows:
“Heard learned counsel for the appellant and learned Additional Public Prosecutor for the State.
This appeal is admitted for hearing. Call for the Lower Court Records.
It appears that out of fifteen accused persons twelve have been acquitted by the same impugned judgment. Allegation against the appellant is that on
the order of the appellant firing was made by co- accused Lalu Yadav, which resulted in death of Ramjit Prasad.
Considering the aforesaid facts, I am of the view that the sentences passed against the appellant Satnarayan Yadav @ Sattan Yadav shall remain
under suspension till disposal of this appeal.
Hence, let the appellant, named above, during the pendency of this appeal, be released on bail on furnishing bail bond of Rs.20,000/- (Twenty
thousand) with two sureties, each of the like amount, to the satisfaction of learned 6th Additional Sessions Judge, Bhojpur at Ara, in connection with
Sessions Trial No.60 of 2016, arising out of Bihiya P.S. Case No. 256 of 2014.â€
13. On examination of order dated 30-05-2018, there is no reason to doubt that the order granting bail to the appellant was not an interim order, but
final bail order was passed in favour of the appellant during pendency of the appeal by the Hon’ble Single Vacation Judge. Besides this, order of
Hon’ble Single Judge/Vacation Judge is further contrary to the statutory provisions as contained in Section 389(1) of the Cr.P.C., since before
passing bail order after conviction of the appellant under Section 302/109 of I.P.C. and his sentence to undergo imprisonment for life, learned Public
Prosecutor was not asked to file written objection against the prayer for bail. It would be better to quote entire Section 389 of the Cr.P.C., which is as
follows:
“389. Suspension of sentence pending the appeal; release of appellant on bail.â€"(1) Pending any appeal by a convicted person, the
Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be
suspended and, also, if he is in confinement, that he be released on bail, or on his own bond:
[Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence
punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the
Public Prosecutor for showing cause in writing against such release:
Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an
application for the cancellation of the bail.]
(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a
convicted person to a Court subordinate thereto.
(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,â€
(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or
(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be
released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal
and obtain the orders of the Appellate Court under sub-section (1); and the sentence of imprisonment shall, so long as he is so
released on bail, be deemed to be suspended.
(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so
released shall be excluded in computing the term for which he is so sentenced.â€
14. The proviso was amended in the year 2006, which makes it clear that even in a case, in which, the Appellate Court proposes to release a convict
on bail, who has been punished with death or imprisonment for life or imprisonment for a term of not less than ten years, providing opportunity to the
Public Prosecutor for filing show-cause in writing against such release is mandatory. Meaning thereby that the Single Vacation Judge, while passing
order of granting bail, has contravened the statutory provisions of the Cr.P.C. Besides this, time without number, it has been held that test of
considering the prayer for bail after conviction is entirely different than test of considering the prayer for bail before conviction. Prior to conviction, bail
is treated as “ruleâ€, however after conviction rejection of bail is treated as “rule†and grant of bail is treated as “exceptionâ€. This view
has been considered by the Hon’ble Supreme Court in a case reported in (2014) 9 SCC 177 (Atul Tripathi vs State of Uttar Pradesh & Ors.). The
Hon’ble Supreme Court in the said case had interferred with the order of granting bail by the High Court mainly on the ground that opportunity of
filing show-case was not provided to the Public Prosecutor. The Hon’ble Supreme Court has reiterated that in view of proviso to Section 389(1)
of the Cr.P.C., before releasing a convict on bail, in which, sentence is more than ten years or it is transportation of life, without providing opportunity
to Public Prosecutor for filing show-case in writing, there is no question for granting bail or passing order of suspension of sentence.
15. In the present case, apparently on going through the order dated 30-05-2018 passed by Single Vacation Judge, it is evident that at the first instance
when appeal was taken-up, it was admitted for hearing, lower court record was called for and the appellant was granted bail and order of sentence
was directed to remain suspended. No opportunity was given to the Public Prosecutor to file written objection, which is contrary to the statutory
provision. Moreover, the Hon’ble Single Vacation Judge has passed an order for granting final bail, which is contrary to the provision contained in
Rule 4, Chapter II of the High Court Rules.
16. So far as question of maintainability of the interlocutory application is concerned, we are of the opinion that certainly in view of Division Bench
order of this Court, on which, reliance has been placed by the learned counsel for the appellant i.e. order date 09-10-2012 passed in Cr. Appeal (DB)
No. 721 of 2008 (Annexure - 1 to the reply filed by the appellant), it would be difficult to pass any positive order, but in any event, whether the
provision of law was incorrectly mentioned in the interlocutory application or not, the fact remains that jurisdictional error, which was committed by the
Single Vacation Judge, has been brought to our notice and as such, we are not debarred from exercising our inherent jurisdiction and in such cases, it
would be appropriate to exercise the jurisdiction. By way of exercising inherent jurisdiction, it is necessary to interfere with the order passed by Single
Vacation Judge.
17. Accordingly, the order dated 30-05-2018, whereby sentence in respect of appellant had been directed to remain suspended and appellant has been
directed to be released on bail, is hereby cancelled and appellant is directed to surrender before the court below and file an affidavit in this respect
within a period of eight weeks from today. Put up thereafter.
18. It is made clear that at the moment, we have not adjudicated the prayer for bail on merit.
