Rule.
Mr.Kodekar, learned APP appears and waives service of rule for respondent No.1 - State. Pursuant to the order of notice dated 13.7.2012, Mr.Kogje, learned advocate appears and waives service of rule for respondent No.2.
The instant application is filed to recall the order dated 9.7.2012 passed in Cr.M.A.No.8340 of 2012 by this Court.
Mr.Tolia, learned advocate for the applicant, at the outset, submitted that the applicant is third party victim and according to him, she is elder sister of the victim, who was allegedly kidnapped. It is further submitted that the respondent No.2 is arraigned as one of the accused person in the FIR filed by Pritambhai Dhirajlal, who happens to be father of the applicant as well as of the victim. It is submitted that the respondent No.2 preferred Cr.M.A.No.8340 of 2012 u/s.438 of the Criminal Procedure Code seeking anticipatory bail in connection with the FIR preferred by Pritambhai Dhirajlal, the father of the applicant as well as of the victim being D.C.B. police station, Surat C.R.No.I-16 of 2012 regarding the offences punishable u/ss.363, 366, 506(2) r/w.Section 114 of the IPC. It is submitted that the respondent No.2 - accused had also preferred Cr.M.A.No.1405 of 2012 seeking anticipatory bail u/s.438 of the Cr.P.C. in the said matter before the Sessions Court, Surat, and it is submitted that on 9.7.2012, when this Court granted order of anticipatory bail in favour of respondent No.2 - original accused, said application being Cr.M.A.No.1405 of 2012 was pending before the Sessions Court and even it is still pending and not finally decided by the concerned Sessions Court and the next date of hearing is, according to his instruction, 24.7.2012. It is, therefore, submitted that the order of anticipatory bail passed by this Court appears to have been passed on the premise that the Sessions Court rejected the request of anticipatory bail of the respondent No.2 - original accused and, therefore, the original accused had approached this Court. It is, therefore, submitted that in the instant matter, the applicant does not ask for reviewing the earlier order passed by this Court, but the aforementioned order deserves to be recalled on the ground that the application filed by respondent No.2 - accused seeking anticipatory bail, is still pending before the Sessions Court and is not finally decided. Reliance was placed on a case of Vishnu Agarwal Vs.State of U.P. reported in AIR 2011 SC 1232.
Mr.Kogje, learned advocate for respondent No.2 - original accused submitted that at the first place, the respondent No.2 - original accused, in his application filed in this Court being Cr.M.A.No.8340 of 2012, did not suppress any material particulars and even the order passed by the Sessions Court dated 12.6.2012 below anticipatory bail application of respondent No.2 - accused, was produced on the record of said case. It is, therefore, submitted that there is no suppression of any particulars. It is further submitted that as provided u/s.362 of the Cr.P.C., this application is not maintainable. In support thereof, reliance was placed on a case of State of Punjab Vs.Dalvinder Pal Singh Bhullar reported in AIR 2012 SC 364 and submitted that virtually the instant application filed by the applicant amounts to seeking review of the earlier order passed by this Court and such review is not permissible and even not provided in the Cr.P.C. It is, therefore, submitted that the specific provision contained u/s.362 of the Cr.P.C. prohibits said application being entertained by this Court.
4.1 Mr.Kogje, learned advocate for respondent No.2 - original accused submitted that so far as the provisions contained u/s.438 of the Cr.P.C. is concerned, there is a concurrent jurisdiction to entertain such application by the Sessions Court as well as by this Court and, therefore, the order passed by this Court cannot be said to be without any jurisdiction. It is further submitted that the anticipatory bail application before the Sessions Court was filed on 19.5.2012 and, thereafter, for one reason or another, the said application could not be heard and disposed of by the Sessions Court. It is submitted that on behalf of the investigating police officer, time was asked and no reply affidavit was filed by the investigating officer in said matter, and on 12.6.2012, again, when the investigating police officer filed time application, on behalf of respondent No.2 - original accused, request was made before the Sessions Court to grant interim protection and said request was rejected by the Sessions Court vide order dated 12.6.2012 passed below application, Exh.1 and, therefore, the respondent No.2 approached this Court. It is, therefore, submitted that in every respect, the instant application is not maintainable and may be dismissed.
Mr.Kodekar, learned APP for the respondent No.1 - State, at the outset, submitted that it is expected from both the parties that at the time of argument, correct facts are brought to the notice of the concerned Court. In the earlier matter, what was going on before the trial Court should have been brought to the notice of this Court. It is further submitted that there is no dispute that on 9.7.2012, when this Court passed the order as well as even today, the anticipatory bail application filed before the Sessions Court is still pending. It is further submitted that there is no dispute that by now, more than the period of two months has elapsed from the date of filing of said application. It is submitted that today the investigating police officer is present before this Court and he shall see that the anticipatory bail application filed before the trial Court should not be now further delayed and he shall co-operate the Sessions Court.
I have given my thoughtful consideration to the submissions advanced on behalf of both the sides. The undisputed fact is that at that time when the Cr.M.A.No.8340 of 2012 came to be preferred before this Court by respondent No.2 - original accused seeking anticipatory bail u/s.438 of the Cr.P.C., his similar bail application seeking anticipatory bail application being Cr.M.A.No.1405 of 2012 was pending before the concerned Sessions Court. It is true that on 12.6.2012, the concerned Sessions Court passed some order below said application, Exh.1. I have taken into consideration the reply affidavit filed by respondent No.2 and more particularly considering the papers annexed with said reply affidavit, it transpires that on 12.6.2012, the investigating police officer filed a report seeking adjournment and it appears that said request was disputed by the respondent No.2 - original accused before the concerned Sessions Court and alternatively a request was made to grant some interim protection to the accused. It transpires that the Sessions Court vide order dated 12.6.2012 rejected said request of interim protection prayed by the respondent No.2 - accused by passing order below main application, Exh.1. At the same time, the request for time was granted to the investigating police office. It appears that the Sessions Court should have passed appropriate order below said time application filed by the State upon request made by the investigating police officer to that effect, but it appears that the Sessions Court passed detailed order rejecting the request for interim protection below main application, Exh.1. It transpires that this appears to have created confusion. As a matter of fact, the main application was filed not for interim protection. The main application was filed seeking anticipatory bail u/s.438 of the Cr.P.C. and, therefore, in view of the above situation, the Sessions Court was not justified in passing said order on 12.6.2012 below main application. If said order was passed below the time application filed by the State on the basis of the request made by the investigating police officer, then such confusion would not have arisen.
In above view of the matter, this Court is of the opinion that the instant application cannot be termed as an application filed for review. It is equally true that u/s.438 of the Cr.P.C., there is a concurrent power vested in the Sessions Court as well as in this Court, but it is well settled that when the concurrent powers are vested with two forums, the lower forum should have been approached first. In the instant matter, this is otherwise explicit because the respondent No.2 - original accused has moved the lower forum, but the said application filed by respondent No.2 - accused has still remained pending before the Sessions Court.
7.1 Accordingly, the aforementioned Criminal Misc.Application No.8340 of 2012 was not maintainable in view of pendency of similar application before the Sessions Court.
Considering the case of Vishnu Agarwal (supra) relied upon on behalf of the applicant, it clearly transpires that the Hon'ble Apex Court took into consideration the distinction between recalling of order as well as reviewing of the order. It has been observed that in a review petition, the Court considers on merits whether there is an error apparent on the face of record or not, whereas in recall petition the Court does not go into the merits but simply recalls an order upon sufficient grounds. I have taken into consideration the case of Dalvinder Pal's case (supra) relied upon on behalf of respondent No.2. Virtually so far as the principle laid down in this case is concerned, and more particularly considering paragraphs 26 to 30, it clearly transpires that the Hon'ble Apex Court took into consideration Section 362 of the Cr.P.C. and observed that review is not maintainable. However, it was further observed that even in the pretext of exercising inherent powers u/s.482 of the Cr.P.C., indirectly review is not permissible. However, Hon'ble the Apex Court simultaneously took into consideration the power of recall vested in the Court and in paragraph 27, it has been observed that in limited circumstances, inherent powers can be exercised to recall an order.
This Court has not at all examined the merits of the matter in this order. Suffice it to say that in above view of the matter, when there is an admitted position that anticipatory bail application filed by respondent No.2
- original accused has still remained pending before the concerned Sessions Court, it would be just and proper, if the concerned Sessions Court shall hear and decide said application first in point of time. Consequently, the order dated 9.7.2012 passed by this Court below Cr.M.A.No.8340 of 2012 deserves to be recalled so that the Sessions Court can exercise its powers and pass appropriate order in accordance with law in the application seeking anticipatory bail filed by respondent No.2 - original accused before the Sessions Court. It is further made clear that no merits are examined. It is further noted that the anticipatory bail application before the Sessions Court was filed by respondent No.2 - original accused on 19.5.2012 and it has still remained pending and now as submitted, it is listed before the Sessions Court on 24.7.2012. It further transpires that the investigating officer did not file any reply affidavit before the Sessions Court and on 12.6.2012, when the matter was taken up for final hearing by the Sessions Court, the investigating police officer asked for time. In above view of the matter, while issuing necessary direction to the concerned Sessions Court, some protection order is required to be passed in favour of respondent No.2 - accused.
For the foregoing reasons, the order dated 9.7.2012 passed in Criminal Misc.Application No.8340 of 2012 is hereby recalled and the concerned Sessions Court is directed to hear and decide the pending Criminal Misc.Application No.1405 of 2012 filed by respondent No.2 herein as expeditiously as possible and shall decide said application in accordance with law, uninfluenced by any observation made by this Court in the order dated 9.7.2012. It is hereby further ordered that till the Sessions Court decides the aforementioned Criminal Misc.Application No.1405 of 2012, no coercive steps shall be taken by the investigating police officer qua the respondent No.2.
Rule is made absolute to the aforesaid extent. Direct service permitted.
(J.C.UPADHYAYA, J.) (binoy) Top