REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2178 OF 2017
(Arising out of S.L.P.(Crl.)No.8030 of 2017)
Madan Mohan ….Appellant(s)
VERSUS
State of Rajasthan & Ors. ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal is filed by the Complainant against
the final judgment and order dated 28.04.2017 passed
by the High Court of Judicature for Rajasthan at
Jaipur in S.B. Criminal Revision Petition No.477 of
2017 whereby the High Court partly allowed the
1
criminal revision petition filed by respondent Nos.2
and 3 herein and set aside that part of the order dated
19.11.2016 passed by the Sessions Judge, Sawai
Madhopur in Session Trial No.44/2016 whereby the
Session Judge while allowing the application filed
under Section 193 of the Criminal Procedure Code,
1973 (hereinafter referred to as “the Code”) by the
appellant (Complainant) issued non-bailable warrants
against respondent Nos. 2 & 3 for their arrest.
3) The facts of the case lie in a narrow compass so
also the issue involved in the appeal is short. They,
however, need mention infra.
4) Two accused, namely, Vimlesh Kumar and Janak
Singh are facing trial for the offences punishable
under Sections 120-B, 363, 366, 368, 370 (4) and 376
of the Indian Penal Code, 1860 (hereinafter referred to
as "IPC") read with Section 3/4 and 16/17 of POCSO
Act, in Sessions Trial No.44/2016. It is pending in the
Court of District and Sessions Judge, Sawai
2
Madhopur. The Sessions trial began pursuant to FIR
No.110/2014 filed by the complainant-Madan Mohan
(appellant herein) in Police Station, Piloda. A charge
sheet has since been filed against two accused
mentioned above.
5) The appellant filed an application under Section
193 of the Code in the Sessions Trial complaining
therein that the names of respondent Nos.2 and 3 -
Ashish Meena and Vimal Meena though figured
prominently in all the material documents filed along
with the charge-sheet, yet for no justifiable reasons,
their names were deleted from the charge-sheet
whereas only the names of two accused, i.e., Vimlesh
and Janak Singh were retained to face the trial.
6) The appellant, therefore, prayed that respondent
Nos.2 and 3 be summoned for being arrayed as
accused persons along with Vimlesh Kumar and
Janak Singh to face the trial because, according to
him, respondent Nos.2 and 3 are also involved in the
3
commission of the offence along with other two
accused.
7) The Sessions Judge, by order dated 19.11.2016,
allowed the application finding prima facie case
against respondent Nos.2 and 3 and accordingly
summoned both by issuing non-bailable warrant of
arrest against them.
8) Respondent Nos.2 and 3 felt aggrieved and filed
Criminal Revision under Section 197 of the Code in
the High Court at Rajasthan out of which this appeal
arises. The complainant-appellant herein at whose
instance the order was passed by the Sessions Judge
was, however, not impleaded as party in the revision.
9) By impugned order, the Single Judge allowed the
revision in part and set aside that portion of the order
of the Sessions Judge which had directed issuance of
non-bailable warrant of arrest of respondent Nos.2
and 3 while summoning them. The High Court then
proceeded to issue further direction to respondent
4
Nos.2 and 3 to surrender before the Trial Court and
move the application for their regular bail, which
would be considered and allowed by that Court on the
same day on which it is moved. A further liberty was
granted to respondent Nos. 2 and 3 to raise the
contentions at the time of framing of the charges.
10) It is apposite to quote in verbatim the impugned
order:
“1. Heard learned counsel for the
accused/petitioners.
2. This Criminal Revision Petition has
been preferred on behalf of the
accused/petitioners against the order
dated 19.11.2016 passed by learned
Sessions Judge, Sawai Madhopur
whereby the application filed under
Section 193 Cr.P.C. by the
complainant-Madan Mohan Meena has
been allowed and the cognizance for the
offences punishable under Sections 363
& IPC and Section 5/6 POCSO Act in the
alternative Section 376(2)(g) IPC has
been taken against the petitioners,
Ashish Meena & Vimal Meena, and they
have been called through non-bailable
warrants.
3. During the course of arguments, learned
counsel for the petitioners restricts his
prayer to the extent that the order
summoning the accused/petitioners
5
through non-bailable warrants may be
quashed.
4. This fact is undisputed that after
thorough investigation made by the
Police, charge-sheet for the offences
punishable under Sections 363, 366,
368, 370(4), 376, 120-B IPC and Section
3/4 and 16/17 of the POCSO Act was
filed only against Vimlesh Kumar and
Janak Singh. Accused/petitioners,
Ashish Meena and Vimal Meena, were not
charge-sheeted. Vide order impugned
dated 19.11.2016, petitioners have been
summoned through non-bailable warrants
for the offences mentioned above.
5. Taking all the facts and circumstances of
the case into consideration in totality, it
appears that the order to the extent of
summoning the petitioners, Ashish
Meena and Vimal Meena, through
non-bailable warrants does not appear
justified and is liable to be quashed and
set aside. However, the petitioners,
Ashish Meena and Vimal Meena, are
directed to surrender before the learned
trial Court and to move application for
their regular bail, which will be
considered and allowed by that Court on
the same day on which it is moved.
6. It is also made clear that the
accused/petitioners will be at liberty to
raise the contentions raised before this
Court at the time of framing of charges
before the learned trial Court.
7. The Criminal Revision Petition stands
disposed off accordingly.”
(Emphasis supplied)
6
11) Against the impugned order of the High Court,
the complainant has felt aggrieved and after obtaining
the leave has filed this appeal by way of special leave
in this Court.
12) Heard learned counsel for the parties.
13) Having heard the learned counsel for the parties
and on perusal of the record of the case, we are
constrained to allow the appeal and set aside the order
to the extent mentioned below.
14) In our considered opinion, the Single Judge
seemed to have passed the impugned order without
application of judicial mind inasmuch as he
committed two glaring errors while passing the order.
First, he failed to see that the complainant at whose
instance the Sessions Judge had passed the order and
had allowed his application under Section 193 of the
Code was a necessary party to the criminal revision
along with the State. Therefore, he should have been
impleaded as respondent along with the State in the
7
revision. In other words, the Complainant also had a
right of hearing in the Revision because the order
impugned in the Revision was passed by the Session
Judge on his application. This aspect of the case was,
however, not noticed by the Single Judge.
15) Second and more importantly was that the Single
Judge grossly erred in giving direction to the Sessions
Judge to consider the bail application of respondent
Nos.2 and 3 and “allow” it on the “same day”.
16) In our considered opinion, the High Court had no
jurisdiction to direct the Sessions Judge to "allow" the
application for grant of bail. Indeed, once such
direction had been issued by the High Court then
what was left for the Sessions Judge to decide except
to follow the directions of the High Court and grant
bail to respondent Nos. 2 and 3. In other words, in
compliance to the mandatory directions issued by the
High Court, the Sessions Judge had no jurisdiction to
reject the bail application but to allow it.
8
17) No superior Court in hierarchical jurisdiction can
issue such direction/mandamus to any subordinate
Court commanding them to pass a particular order on
any application filed by any party. The judicial
independence of every Court in passing the orders in
cases is well settled. It cannot be interfered with by
any Court including superior Court.
18) When an order is passed, it can be questioned by
the aggrieved party in appeal or revision, as the case
may be, to the superior Court. It is then for the
Appellate/Revisionery Court to decide as to what
orders need to be passed in exercise of its
Appellate/Revisionery jurisdiction. Even while
remanding the case to the subordinate Court, the
Superior Court cannot issue a direction to the
subordinate Court to either “allow” the case or “reject”
it. If any such directions are issued, it would amount
to usurping the powers of that Court and would
amount to interfering in the discretionary powers of
9
the subordinate Court. Such order is, therefore, not
legally sustainable.
19) It is the sole discretion of the Sessions Judge to
find out while hearing the bail application as to
whether any case on facts is made out for grant of bail
by the accused or not. If made out then to grant the
bail and if not made out, to reject the bail. In either
case, i.e., to grant or reject, the Sessions Judge has to
apply his independent judicial mind and accordingly
pass appropriate reasoned order keeping in view the
facts involved in the case and the legal principles
applicable for grant/rejection of the bail. In this case,
the Single Judge failed to keep in his mind this legal
principle.
20) It is for this reason, in our view, such directions
were wholly uncalled for and should not have been
given. This Court cannot countenance issuing of such
direction by the High Court.
10
21) In our view, at best, the High Court could have
made an observation to the effect that the respondent
Nos.2 and 3 (accused persons) are at liberty to
approach the Sessions Judge for grant of bail and, if
any application is filed, it would be decided by the
Sessions Judge on its merits and in accordance with
law expeditiously but not beyond it.
22) We are, therefore, constrained to set aside the
direction given by the High Court to the Sessions
Judge to "consider and allow" the bail application
made by respondent Nos. 2 & 3 in Sessions Trial Case
No.44/2016 on the same day on which it was moved.
23) So far as the direction by which cognizance of the
case against respondent Nos.2 and 3 was taken by the
Sessions Judge, the Single Judge has upheld it. It is
not questioned here. In the light of this, the
respondent Nos.2 and 3 have to submit themselves to
the jurisdiction of the Sessions Judge and raise the
pleas which are available to them in law.
11
24) In view of foregoing discussion, the appeal
succeeds and is accordingly allowed. The impugned
order to the extent indicated above is set aside. The
Session Judge would now decide the application for
bail, if made by Respondent Nos. 2 and 3, on its
merits and in accordance with law, if not so far
decided.
………...................................J.
[R.K. AGRAWAL]
...……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
December 14, 2017
12
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2178 OF 2017
(Arising out of S.L.P.(Crl.)No.8030 of 2017)
Madan Mohan ….Appellant(s)
VERSUS
State of Rajasthan & Ors. ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal is filed by the Complainant against
the final judgment and order dated 28.04.2017 passed
by the High Court of Judicature for Rajasthan at
Jaipur in S.B. Criminal Revision Petition No.477 of
2017 whereby the High Court partly allowed the
1
criminal revision petition filed by respondent Nos.2
and 3 herein and set aside that part of the order dated
19.11.2016 passed by the Sessions Judge, Sawai
Madhopur in Session Trial No.44/2016 whereby the
Session Judge while allowing the application filed
under Section 193 of the Criminal Procedure Code,
1973 (hereinafter referred to as “the Code”) by the
appellant (Complainant) issued non-bailable warrants
against respondent Nos. 2 & 3 for their arrest.
3) The facts of the case lie in a narrow compass so
also the issue involved in the appeal is short. They,
however, need mention infra.
4) Two accused, namely, Vimlesh Kumar and Janak
Singh are facing trial for the offences punishable
under Sections 120-B, 363, 366, 368, 370 (4) and 376
of the Indian Penal Code, 1860 (hereinafter referred to
as "IPC") read with Section 3/4 and 16/17 of POCSO
Act, in Sessions Trial No.44/2016. It is pending in the
Court of District and Sessions Judge, Sawai
2
Madhopur. The Sessions trial began pursuant to FIR
No.110/2014 filed by the complainant-Madan Mohan
(appellant herein) in Police Station, Piloda. A charge
sheet has since been filed against two accused
mentioned above.
5) The appellant filed an application under Section
193 of the Code in the Sessions Trial complaining
therein that the names of respondent Nos.2 and 3 -
Ashish Meena and Vimal Meena though figured
prominently in all the material documents filed along
with the charge-sheet, yet for no justifiable reasons,
their names were deleted from the charge-sheet
whereas only the names of two accused, i.e., Vimlesh
and Janak Singh were retained to face the trial.
6) The appellant, therefore, prayed that respondent
Nos.2 and 3 be summoned for being arrayed as
accused persons along with Vimlesh Kumar and
Janak Singh to face the trial because, according to
him, respondent Nos.2 and 3 are also involved in the
3
commission of the offence along with other two
accused.
7) The Sessions Judge, by order dated 19.11.2016,
allowed the application finding prima facie case
against respondent Nos.2 and 3 and accordingly
summoned both by issuing non-bailable warrant of
arrest against them.
8) Respondent Nos.2 and 3 felt aggrieved and filed
Criminal Revision under Section 197 of the Code in
the High Court at Rajasthan out of which this appeal
arises. The complainant-appellant herein at whose
instance the order was passed by the Sessions Judge
was, however, not impleaded as party in the revision.
9) By impugned order, the Single Judge allowed the
revision in part and set aside that portion of the order
of the Sessions Judge which had directed issuance of
non-bailable warrant of arrest of respondent Nos.2
and 3 while summoning them. The High Court then
proceeded to issue further direction to respondent
4
Nos.2 and 3 to surrender before the Trial Court and
move the application for their regular bail, which
would be considered and allowed by that Court on the
same day on which it is moved. A further liberty was
granted to respondent Nos. 2 and 3 to raise the
contentions at the time of framing of the charges.
10) It is apposite to quote in verbatim the impugned
order:
“1. Heard learned counsel for the
accused/petitioners.
2. This Criminal Revision Petition has
been preferred on behalf of the
accused/petitioners against the order
dated 19.11.2016 passed by learned
Sessions Judge, Sawai Madhopur
whereby the application filed under
Section 193 Cr.P.C. by the
complainant-Madan Mohan Meena has
been allowed and the cognizance for the
offences punishable under Sections 363
& IPC and Section 5/6 POCSO Act in the
alternative Section 376(2)(g) IPC has
been taken against the petitioners,
Ashish Meena & Vimal Meena, and they
have been called through non-bailable
warrants.
3. During the course of arguments, learned
counsel for the petitioners restricts his
prayer to the extent that the order
summoning the accused/petitioners
5
through non-bailable warrants may be
quashed.
4. This fact is undisputed that after
thorough investigation made by the
Police, charge-sheet for the offences
punishable under Sections 363, 366,
368, 370(4), 376, 120-B IPC and Section
3/4 and 16/17 of the POCSO Act was
filed only against Vimlesh Kumar and
Janak Singh. Accused/petitioners,
Ashish Meena and Vimal Meena, were not
charge-sheeted. Vide order impugned
dated 19.11.2016, petitioners have been
summoned through non-bailable warrants
for the offences mentioned above.
5. Taking all the facts and circumstances of
the case into consideration in totality, it
appears that the order to the extent of
summoning the petitioners, Ashish
Meena and Vimal Meena, through
non-bailable warrants does not appear
justified and is liable to be quashed and
set aside. However, the petitioners,
Ashish Meena and Vimal Meena, are
directed to surrender before the learned
trial Court and to move application for
their regular bail, which will be
considered and allowed by that Court on
the same day on which it is moved.
6. It is also made clear that the
accused/petitioners will be at liberty to
raise the contentions raised before this
Court at the time of framing of charges
before the learned trial Court.
7. The Criminal Revision Petition stands
disposed off accordingly.”
(Emphasis supplied)
6
11) Against the impugned order of the High Court,
the complainant has felt aggrieved and after obtaining
the leave has filed this appeal by way of special leave
in this Court.
12) Heard learned counsel for the parties.
13) Having heard the learned counsel for the parties
and on perusal of the record of the case, we are
constrained to allow the appeal and set aside the order
to the extent mentioned below.
14) In our considered opinion, the Single Judge
seemed to have passed the impugned order without
application of judicial mind inasmuch as he
committed two glaring errors while passing the order.
First, he failed to see that the complainant at whose
instance the Sessions Judge had passed the order and
had allowed his application under Section 193 of the
Code was a necessary party to the criminal revision
along with the State. Therefore, he should have been
impleaded as respondent along with the State in the
7
revision. In other words, the Complainant also had a
right of hearing in the Revision because the order
impugned in the Revision was passed by the Session
Judge on his application. This aspect of the case was,
however, not noticed by the Single Judge.
15) Second and more importantly was that the Single
Judge grossly erred in giving direction to the Sessions
Judge to consider the bail application of respondent
Nos.2 and 3 and “allow” it on the “same day”.
16) In our considered opinion, the High Court had no
jurisdiction to direct the Sessions Judge to "allow" the
application for grant of bail. Indeed, once such
direction had been issued by the High Court then
what was left for the Sessions Judge to decide except
to follow the directions of the High Court and grant
bail to respondent Nos. 2 and 3. In other words, in
compliance to the mandatory directions issued by the
High Court, the Sessions Judge had no jurisdiction to
reject the bail application but to allow it.
8
17) No superior Court in hierarchical jurisdiction can
issue such direction/mandamus to any subordinate
Court commanding them to pass a particular order on
any application filed by any party. The judicial
independence of every Court in passing the orders in
cases is well settled. It cannot be interfered with by
any Court including superior Court.
18) When an order is passed, it can be questioned by
the aggrieved party in appeal or revision, as the case
may be, to the superior Court. It is then for the
Appellate/Revisionery Court to decide as to what
orders need to be passed in exercise of its
Appellate/Revisionery jurisdiction. Even while
remanding the case to the subordinate Court, the
Superior Court cannot issue a direction to the
subordinate Court to either “allow” the case or “reject”
it. If any such directions are issued, it would amount
to usurping the powers of that Court and would
amount to interfering in the discretionary powers of
9
the subordinate Court. Such order is, therefore, not
legally sustainable.
19) It is the sole discretion of the Sessions Judge to
find out while hearing the bail application as to
whether any case on facts is made out for grant of bail
by the accused or not. If made out then to grant the
bail and if not made out, to reject the bail. In either
case, i.e., to grant or reject, the Sessions Judge has to
apply his independent judicial mind and accordingly
pass appropriate reasoned order keeping in view the
facts involved in the case and the legal principles
applicable for grant/rejection of the bail. In this case,
the Single Judge failed to keep in his mind this legal
principle.
20) It is for this reason, in our view, such directions
were wholly uncalled for and should not have been
given. This Court cannot countenance issuing of such
direction by the High Court.
10
21) In our view, at best, the High Court could have
made an observation to the effect that the respondent
Nos.2 and 3 (accused persons) are at liberty to
approach the Sessions Judge for grant of bail and, if
any application is filed, it would be decided by the
Sessions Judge on its merits and in accordance with
law expeditiously but not beyond it.
22) We are, therefore, constrained to set aside the
direction given by the High Court to the Sessions
Judge to "consider and allow" the bail application
made by respondent Nos. 2 & 3 in Sessions Trial Case
No.44/2016 on the same day on which it was moved.
23) So far as the direction by which cognizance of the
case against respondent Nos.2 and 3 was taken by the
Sessions Judge, the Single Judge has upheld it. It is
not questioned here. In the light of this, the
respondent Nos.2 and 3 have to submit themselves to
the jurisdiction of the Sessions Judge and raise the
pleas which are available to them in law.
11
24) In view of foregoing discussion, the appeal
succeeds and is accordingly allowed. The impugned
order to the extent indicated above is set aside. The
Session Judge would now decide the application for
bail, if made by Respondent Nos. 2 and 3, on its
merits and in accordance with law, if not so far
decided.
………...................................J.
[R.K. AGRAWAL]
...……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
December 14, 2017
12
