Jagarnathi Mahto and Another vs The State of Bihar

Heard counsel for the parties.

The Petitioners have preferred this writ application impugning the order of the learned Single Judge of this Court, whereby the learned Single Judge had directed that the Petitioner shall be released on bail after six months, on furnishing requisite bail bonds. The aforesaid order was passed on 3rd October, 1994. For the sake of convenience, the order is reproduced below:

Heard the parties.

Having regard to the nature of the offence and the weapons used in the same, the Petitioners Jagarnathi Mahto and Bandhu Mahto are directed to be released on bail after six months on furnishing bail bonds of Rs. 5000/- (five thousand) each with two sureties of the like amount each to the satisfaction of A.C.J.M., Bermo at Tenughat in Gomia P.S. case No. 76/94.

The Petitioners claim a writ of certiorari quashing the aforesaid order contending that it affects the liberty of the Petitioners, inasmuch as the learned Judge after coming to the conclusion that the Petitioners deserved to be released on bail deferred their release by six months. It is submitted that the power u/s 439 Code of Criminal Procedure is not punitive in character and by deferring the release of the Petitioners by six months, the Court has in fact directed them to suffer incarceration for a period of six months without any trial. It is, therefore, submitted that since the order affects the fundamental rights of the Petitioners to life and liberty, the order should be quashed in exercise of writ jurisdiction.

We are, prima-facie, of the view that in exercise of jurisdiction u/s 439 Code of Criminal Procedure, High Court may grant bail or may even refuse to grant bail. However, if the High Court is satisfied that a case has been made out for release of the Petitioners on bail, it cannot impose pre-trial punishment on the Petitioners by compelling them to suffer incarceration for any period. This view has been taken by the Judicial Commissioner of Manipur in 1964 II Cr. LJ 98. So far our recollection goes, there are judgments of the Supreme Court to this effect, but the counsel for the parties have not been able to lay their hands on any of them.

However, the point which arises for consideration is whether in exercise of writ jurisdiction, we can quash the impugned order. It may not be forgotten that the impugned order is also an order of High Court. The mere fact that the order has been passed by a learned Single Judge of this Court is not to say that it is not an order of the High Court in exercise of its jurisdiction. The work is distributed amongst the Judges by the Hon''ble Chief Justice and under the Rules some category of cases are to be disposed of by a learned Single Judge while some are required to be disposed of by Division Bench. Whether the matter is disposed of by a learned Single Judge or by a Division Bench, the order is that of the High Court. It is, therefore not permissible for any one to contend that Division Bench of the Court is a superior Court in relation to a learned Single Judge of the same High Court. In both the cases, the jurisdiction is that of the High Court and the principle of comity of Courts will apply with full vigour. It is well known that a writ of certiorari shall be issued from a superior Court to an inferior Court for correcting any error committed by the said inferior Court. We, therefore, in exercise of such jurisdiction cannot quash the impugned order of the learned single Judge. There is also no question of exercising inherent jurisdiction to quash the aforesaid order, when the Petitioners have remedy by way of SLP to the Supreme Court, which is a superior Court. In the alternative, the Petitioners may move the learned Single Judge himself for granting the relief as the Court may deem fit and proper, having regard to the circumstances of the case.

Counsel for the Petitioners contends that he has no objection to move the learned Single Judge for correcting the error in exercise of inherent jurisdiction as was done in the case of A.R. Antulay v. R.S. Nayak reported in AIR 1988-S.C. 1531.

In this view of the matter, this writ application is disposed of with liberty to the Petitioners to move the learned Single Judge for appropriate order. Counsel for the Petitioners states that the learned Single Judge who had disposed of the bail application may not be available at Ranchi. If that be so, the matter may be placed before the Hon''ble Chief Justice for appropriate orders.