REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1693…. OF 2012
[Arising out of SLP (Crl.) No. 2575 of 2010]
Nazma .. Appellant
Versus
Javed @ Anjum .. Respondent
J U D G M E N T
K. S. Radhakrishnan, J.
1. Leave granted.
2. We are, in this appeal, concerned with the legality and propriety of
an order passed by the High Court of Allahabad in a disposed of Criminal
Miscellaneous Writ Petition.
3. Facts giving rise to this appeal are as follows:
The marriage of the appellant and 1st respondent took place in the year
1997 according to the Muslim rites and customs and out of that wedlock
three children were born. According to the appellant, 1st respondent
married again for a third time. During the subsistence of the appellant’s
marriage, 1st Respondent kept on harassing the appellant demanding dowry,
which resulted in the lodgment of an F.I.R. by the appellant’s brother,
being F.I.R. No. 72 of 2003, on 5.8.2003 and a case was registered under
Sections 498-A, 323, 324, 504, 506 of the Indian Penal Code (IPC) and
Sections 3 and 4 of the Dowry Prohibition Act against 1st respondent and
his family members. The case was later transferred to the Ladies Police
Station, Rakab Ganj, Agra vide an order dated 12.9.2003 of the S.S.P.,
Agra.
4. Family members of 1st respondent then approached the High Court of
Allahabad and filed a Criminal Miscellaneous Writ Petition No. 5426 of 2003
for quashing the F.I.R. In that writ petition, the appellant was not made
a party, but only her brother. The family members of 1st respondent had
submitted before the High Court that an amount of Rs.2,000/- per month
would be deposited in the Court of the Chief Judicial Magistrate, until the
conclusion of the trial and the appellant could withdraw the same. The
High Court on 17.9.2003 passed the following order:
“Heard ld. Counsel for the petitioner and Ld. A.G.A.
Learned counsel for the petitioner has agreed to deposit
Rs.2,000/- (rupees two thousand only) per month on compassionate
ground to be withdrawn by the wife of the petitioner Smt. Nazma. The
amount shall be deposited in the court of Chief Judicial Magistrate
concerned until the conclusion of trial.
In the above said facts and circumstances, since investigation
is only with regard to the matter pertaining to the demand of dowry
and some ancillary offences under Indian Penal Code, we are inclined
to
Interfere primarily with an intent to settle the dispute between
the parties amicably. The arrest of the petitioners in case crime
No.227 of 2003, under Sections 498-A, 323, 324, 504, 506 IPC and Ss. 3
and 4 of D.P. Act, Police Station Achhnera, District Agra, shall not
be effected until the conclusion of investigation or submission of the
report under Section 173 Cr.P.C.
with this direction the petition is finally disposed of.”
(emphasis added)
The above order is seen passed by the High Court with the intention that
the parties would settle their disputes amicably.
5. 1st respondent also filed a Criminal Miscellaneous Writ Petition No.
5877 of 2003 before the High Court of Allahabad seeking identical reliefs.
Writ petition was filed without making the appellant or his brother a
party. Writ petition was disposed of by the High Court on 25.9.2003
stating that 1st respondent should not be arrested until the conclusion of
the investigation or submission of any report under Section 173 of the Code
of Criminal Procedure (CrPC), the operative portion of the order reads as
follows:
Heard ld. Counsel for the petitioner and ld. A.G.A.
The arrest of other family members has been stayed in Criminal
Misc. Writ Petition No. 5426/2003 (Smt. Amana and others Vs. State of
U.P. & others). The said writ petition has been disposed of also with
a direction to deposit Rs.2,000/- per month. This petition is on
behalf of husband. The offences are under Section 498-A I.P.C. and
some other ancillary offence under I.P.C. etc. photo copy of the order
passed in the above said writ petition has been produced by learned
counsel for the petitioner. It is placed on record.
In this view of the matter, the arrest of the petitioner in case
Crime No. 227 of 2003, under Sections 498-A, 323, 324, 504 and 506 IPC
and Sections 3 and 4 of DP Act, P.S. Achhnera, district Agra, shall
not be effected until the conclusion of investigation or submission of
any report under section 173 Cr.P.C.
With this direction this petition is finally disposed of.”
6. The Investigating Officer then filed the report closing the
investigation. Learned Chief Judicial Magistrate, however, took cognizance
of the case and issued summons vide his order dated 15.1.2004. 1st
respondent challenged that order before the High Court of Allahabad in
Revision Petition No. 694 of 2004 which was dismissed by the High Court on
24.2.2004 by the following order:
“Having heard the learned counsel for the parties, this revision
petition is dismissed. However, in the interest of justice, I direct
that if revisionist moves objections through counsel within two weeks
against the impugned order, the same may be disposed of expeditiously
and till the disposal of the objection the revisionist shall not be
arrested.”
(emphasis added)
7. 1st respondent filed objections before the learned Magistrate on
5.3.2004 with a prayer for recalling the summoning order dated 15.1.2004.
8. 1st respondent then filed an application, Criminal Miscellaneous
Application 133306 of 2004, in the disposed of Criminal Miscellaneous Writ
Petition No. 5877 of 2003. The High Court allowed the application and
passed the following order on 26.8.2004:
“Application is allowed. The accused was directed to deposit a
sum of Rs.2,000/- per month until the conclusion of trial.
Since the payment is to be made till the end of trial. We feel
it expedient to stay their arrest until the conclusion of trial.”
(emphasis added)
In that application, appellant was not made a party and the Court
practically reviewed its earlier order dated 25.9.2003 and extended the
stay of arrest until the conclusion of the trial. Earlier, by order dated
25.9.2003, the High Court had directed stay of arrest till the conclusion
of the investigation or submission of any report under Section 173 CrPC and
later vide order dated 26.8.2004, it was ordered that the 1st respondent
should not be arrested until the conclusion of the trial. Against this
order of the High Court, this appeal has been preferred by the appellant-
wife.
9. Shri Shiv Ram Sharma, learned counsel appearing for the appellant,
submitted that the High Court has committed a grave error in entertaining
the criminal miscellaneous application in a disposed of criminal
miscellaneous writ petition and granting relief to 1st respondent. Learned
counsel submitted that the practice of filing miscellaneous application in
disposed of writ petitions are on the rise, in spite of the fact that this
practice has been deprecated by this Court in various judgments. Reference
was made to the judgment of this Court in Hari Singh Mann v. Harbhajan
Singh Bajwa and Others (2001) 1 SCC 169. Learned counsel further
submitted that the High Court, by granting stay of arrest, is depriving the
trial Courts of its power to issue orders under Section 439 CrPC. Learned
counsel also submitted that the order of the High Court is also interfering
with the powers of the Family Court in passing appropriate orders in the
application filed under Section 125 CrPC.
10. Shri Arvind Kumar, learned counsel appearing for the respondent,
submitted that the High Court has only granted stay of the arrest of 1st
respondent till the conclusion of the trial, consequently, no prejudice has
been caused to the appellant. Further, it was also pointed out that 1st
respondent is depositing the amount of Rs.2,000/- per month in the Court of
Chief Judicial Magistrate, Agra, as directed by the High Court and that
appellant has made an application for withdrawal of the said amount as
well. Further, it was also stated that since the appellant was not a party
to the Criminal Writ Petition No. 5877 of 2003 as well as in Criminal
Miscellaneous Application No. 133306 of 2004, this appeal preferred by the
appellant is not maintainable.
11. We are of the view that the High Court has committed a grave error in
entertaining the criminal miscellaneous application No. 133306 of 2004 in a
disposed of Criminal Writ Petition No. 5877 of 2003. Criminal Writ
Petition No. 5877 of 2003 was disposed of on 25.9.2003 directing that the
1st respondent should not be arrested until the conclusion of the
investigation or submission of any report under Section 173 CrPC. On an
application filed by the 1st respondent in that writ petition, the High
Court later passed an order on 26.8.2004 stating that the petitioner
therein (1st respondent) be not arrested until the conclusion of the trial.
The practice of entertaining miscellaneous applications in disposed of
writ petitions was deprecated by this Court in Hari Singh Mann (supra).
Reference to the following paragraph of that judgment is apposite:
“8. We have noted with disgust that the impugned orders were
passed completely ignoring the basic principles of criminal law. No
review of an order is contemplated under the Code of Criminal
Procedure. After the disposal of the main petition on 7-1-1999, there
was no lis pending in the High Court wherein the respondent could have
filed any miscellaneous petition. The filing of a miscellaneous
petition not referable to any provision of the Code of Criminal
Procedure or the rules of the court, cannot be resorted to as a
substitute of fresh litigation. The record of the proceedings produced
before us shows that directions in the case filed by the respondents
were issued apparently without notice to any of the respondents in the
petition. Merely because Respondent 1 was an Advocate, did not justify
the issuance of directions at his request without notice of the other
side. The impugned orders dated 30-4-1999 and 21-7-1999 could not have
been passed by the High Court under its inherent power under Section
482 of the Code of Criminal Procedure. The practice of filing
miscellaneous petitions after the disposal of the main case and
issuance of fresh directions in such miscellaneous petitions by the
High Court are unwarranted, not referable to any statutory provision
and in substance the abuse of the process of the court.”
12. We are sorry to note that in spite of the clear pronouncement of law
by this Court, still, the High Courts are passing the similar orders, which
practice has to be deprecated in the strongest terms. Of late, we notice
that the High Courts are entertaining writ petitions under Articles 226 and
227 of the Constitution, so also under Section 482 CrPC and passing and
interfering with various orders granting or rejecting request for bail,
which is the function of ordinary Criminal Court. The jurisdiction vested
on the High Court under Articles 226 and 227 of the Constitution as well as
Section 482 CrPC are all exceptional in nature and to be used in most
exceptional cases. The jurisdiction under Section 439 CrPC is also
discretionary and it is required to be exercised with great care and
caution.
13. We are of the view that the High Court has committed a grave error in
not only entertaining the criminal miscellaneous application in a disposed
of writ petition, but also passing an order not to arrest the 1st
respondent till the conclusion of the trial. Grant of bail or not to
grant, is within the powers of the regular Criminal Court and the High
Court, in its inherent jurisdiction, not justified in usurping their
powers. Once the criminal writ petition has been disposed of, the High
Court becomes functus officio and cannot entertain review petitions or
miscellaneous applications except for carrying out typographical or
clerical errors. In the instant case, the High Court has entertained a
petition in a disposed of criminal writ petition and granted reliefs, which
is impermissible in law.
14. We are, therefore, inclined to allow this appeal and set aside the
impugned order passed by the High Court, with costs of Rs.25,000/- to be
paid by 1st respondent to the appellant, within a period of two months.
……………………………………….…J
(K. S. RADHAKRISHNAN)
……………………………………..J.
(DIPAK MISRA)
New Delhi,
October 19, 2012
