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

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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

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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

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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 397 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

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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

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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)

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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

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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.

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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

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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.  

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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.   

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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  

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