Indra Mohan Singh and Others vs State of U.P. and Others

Kundan Singh, J.—This revision petition is directed against the order dated 15.11.1988 passed by the Sessions Judge, Farrukhabad in Criminal Revision No. 58 of 1988 allowing the revision and cancelling the bail of the applicants Indra Mohan Singh and Subedar Singh granted by IInd Asstt. Sessions Judge, Farrukhabad in Case Crime No. 161 of 1987 under Sections 147, 148, 149 and 307, I.P.C., relating to police station Kamal Ganj, District Farrukhabad.

The learned Counsel for the applicants submitted that applicants Indra Mohan Singh and Subedar Singh were granted ball by the IInd Asstt. Sessions Judge. Farrukhabad on 30.5.88 and 29.5.88, respectively and a Division Bench of this Court in a case Bhola and Ors. v. State of U.P. (IIXX) 1979 ACC 155 has held that the order granting, refusing or cancelling ball was an interlocutory order, hence the order passed by the learned Asstt. Sessions Judge was not revisable. The learned Sessions Judge had no Jurisdiction to entertain revision against the interlocutory order granting bail to the applicants and as such the order passed by him allowing the revision was patently illegal and without Jurisdiction. The court below erroneously held that the applicants had not been committed to the Court of Sessions, and consequently the learned Asstt. Sessions Judge had no Jurisdiction to take the applicants into custody and release them on bail. in support of this revision, he contended that the case of other co-accused had already been committed to the Court of Sessions and the trial was pending before the IInd Asstt. Sessions Judge, Farrukhabad, who had taken cognizance of the offence and, therefore, he was fully Justified in permitting the applicants to surrender, hear their bail application and release them on bail.

On the contrary, the learned Counsel appearing for the opposite party contended that the revision is not maintainable in this Court: against the order granting, cancelling or refusing bail.

I have considered the above legal submissions made on behalf of both the parties. It is not disputed that the other co-accused had already been committed to the Court of Sessions and the trial was pending before the IInd Asstt. Sessions Judge, Farrukhabad, where the applicants surrendered and moved bail application and that after considering the material available on record, the learned Asstt. Sessions Judge had granted bail to them. Now the only thing to be considered in this revision is whether the applicants were first required to surrender before the C.J.M. or the court concerned and then apply for bail to the Sessions Judge.

In support of his submission, the learned Counsel for the applicants relied upon the following observations of the Supreme Court in the case of Kishun Singh and Ors. v. State of Bihar (XXX) 1993 ACC 167 (SC):

We have already indicated earlier from the ratio of this Court''s decisions in the cases of Raghubans Dubey and Hariram that once the court takes cognizance of the offence (not the offender) it becomes the court''s duty to find out the real offenders and if it comes to the conclusion that besides the person put up for trial by the police some others are also involved in the commission of the crime. It is the court''s duty to summon them to stand trial along with those already named, since summoning them would only be a part of the process of taking cognizance.

Thus it is clear that the court has Jurisdiction to summon the persons other than the persons put up for trial by the police and committed to the Court of Sessions. in the present case, the IInd Asstt. Sessions Judge had already taken cognizance and he was fully empowered to summon the person involved in the crime though not challenged by the police and committed by the Magistrate to the Court of Sessions. Once the case has been committed to the Court of Sessions and the Sessions Judge has taken cognizance of the offence, the restriction placed on the power of the Court of Sessions not to take cognizance of an offence as a court of original Jurisdiction gets lifted and the Sessions Judge would be empowered to summon any person u/s 193, Code of Criminal Procedure other than the person facing the trial before him if the court comes to the conclusion that he is also involved in the crime.

Thus the IInd Asstt. Sessions Judge, who had already taken cognizance was Justified in permitting the accused applicants, who were involved in the offence along with other co-accused and facing trial before him, to surrender and consider their bail application. The trial Judge was fully empowered to try all the accused, convict them, award sentence and also grant or refuse ball to the applicants, who were facing trial before him. in the present case, the Sessions Judge has wrongly assumed revisional Jurisdiction against an interlocutory order granting bail to the applicants by the IInd Asstt. Sessions Judge which was not amenable to his revisional Jurisdiction. The order passed by the court below was patently illegal and without jurisdiction on the face of it which can be set right by this Court in exercise of the revisional Jurisdiction as the impugned order in this revision is not against the order granting, cancelling or refusing bail.

Accordingly, the revision succeeds and is hereby allowed. The order of the Sessions Judge dated 15.11.88 is set aside and those of the IInd Asstt. Sessions Judge dated 30.5.88 and 29.5.88 granting bail to the applicants Nos. 1 and 2 respectively are affirmed and maintained.