Page 1

1

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

Page 2

2

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

Page 3

3

on compassionate ground to be withdrawn by the wife of  the petitioner Smt.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:

Page 4

4

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

Page 5

5

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

Page 6

6

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.    

Page 7

7

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

Page 8

8

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

Page 9

9

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.

Page 10

10

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