GURRAM NARASIMHASWAMI SIDDHIRAM V/S DR. G. HARIKISHAN AND ORS (2020)

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GURRAM NARASIMHASWAMI SIDDHIRAM V/S DR. G. HARIKISHAN AND ORS (2020)

FACTS OF THE CASE

The applicant has filed Criminal Writ Petition 380 of 2017 in court to challenge the order passed on September 3, 2016 for the Bail Application of Accused 1 to 7 and against order dated September 17, 2016 for the Bail Application of Accused 8. He also raised a question on the order passed by the Metropolitan Magistrate, Kurla, Mumbai rejecting the application of the applicant, praying for the accused to be sent into judicial custody and to conduct a fair trial and provide a chance for the applicant to be heard.

The applicant applies for the following relief in this application:

1. To review and recall the Writ Petition and to set aside the order of granting bail to the accused.
2. To restore and to rehear the present matter.
3. To put a stay on proceedings by the Metropolitan Magistrate pending of final hearing and disposal of review petition.

The applicant’s Writ Petition was dismissed on June 7, 2019 after hearing both sides of the case. The order is to be recalled and reviewed by the present application. 

CONTENTIONS LAID DOWN BY THE APPLICANT 

The learned advocate for the applicant raised the views that the Court had “mechanically adopted the erroneous reasoning” of Single Judge bench of Allahabad High Court in the case of Vishwanath Jiloka vs First Munsif Lower Criminal Court (1989), which had been said to be an error in interpretation of the Sec 87 r/w Sec 204 of CrPc by the Three Judge bench of the Allahabad High Court. The counsel added that the ground for submitting such review petition under Article 226 of the Constitution r/w Sec 482 of CrPc has been laid down in the landmark judgement passed by Hon’ble Supreme Court in A.R. Antuley vs R.S. Nayak (1988). The judgement held that the decision of the court had been passed in lack of due regard to the facts. They contended that the review petition must be allowed as some essential points of law have not been considered by the court and that the Magistrate knowingly overlooked and neglected the statutory mandate provided under Sec 437 of CrPc, without providing the applicant’s counsel or Public Prosecutor the right to be heard and present necessary evidence. The Magistrate granted bail to Accused 1 to 7. The counsel contented that the Allahabad Court committed an error in interpreting the provision of Sec 88 of CrPc where it is presumed to be illegal when attendance of the said accused is not exempted or a warrant has been issued against such accused, appears before a Magistrate and is taken into custody and granted judicial remand

They also submitted that there exists an “untenable connection” between Sec 204 and 167 of CrPc, the provision of Sec 204(5) empowers the Magistrate to issue warrants even in summons cases and this was confirmed in the case of Ranjit Singh vs State of Uttar Pradesh. It was explained that if a warrant is issued in a summons case, it does not turn such case into a warrants case as the prescribed procedure and provisions to conduct trial in both cases are different. The learned advocate of the applicant supported their contentions with the case of Whether vs State of Gujarat High Court. Here the court laid down that Sec 204 and 87 of CrPc operate in different fields, Sec 87 provides independent and separate powers to the Magistrate to issue summons in certain cases including summons case. However, in summons case warrants are issued in addition to summons to fulfil the requirements of the said section. In contrast to that, Sec 204 enables the Magistrate with the power to issue summons for appearance in a summons case. Sec 204(5) confers additional powers to the Magistrate to issues warrants even in summons case after providing necessary reasons in writing. 

The counsel also relied upon the judgement of Sudhir Nathani vs CBI (2003) where it was observed that under Sec 204, to call for the presence of an accused in court in a summons case does not take away the power of the court to consider the acceptance or rejection of a bail application under Sec 437. The counsel stated that the applicant is deprived of their fundamental right to equality under Article 14 of the Indian Constitution.

CONTENTIONS LAID DOWN BY THE RESPONDENT

The learned counsel of the respondent laid that the review petition submitted by the applicant is devoid of merits and the court has thoroughly gone through the issues and passed a well formed order of dismissing such petition. According to them, there is no need for reviewing the same issues as all the legal questions raised by the advocate of the applicant were dealt by the court. They believe that the interpretations of applicant’s counsel are contrary to the provisions of the law. It was contended by the counsel that the language used by the applicant and their advocate is contemptuous in the application. The applicant has no respect and regard for the court and process of justice. The use of derogatory words such as “knowingly omitted and avoided ” raise objection on the functioning of the court and hence a strict action must be taken against them. The counsel of the respondent also submitted that the contention of the applicant is based on their opinions and interpretations. The accused had appeared before the court, applied for bail and such application was granted by the Magistrate, the question of giving a chance to hear the other party under Sec 437 does not arise. It was also contended that the review application in itself is not maintainable and cannot be recalled as the court had evaluated all factual aspects of the case, heard both sides and passed an order along with the reasons. The counsel relied upon the case of Atul Shukla vs State of Madhya Pradesh (2019) .

JUDGEMENT PASSED BY THE COURT

The court in this matter relied upon the judgement by Hon’ble Supreme Court in the case of A.R Antley (supra), elucidating that the court may have its orders passed if such have resulted in violation of fundamental rights of a citizen. Also relying on the case brought up by the applicant, Sudhir Nathani vs CBI (supra), the court upheld the judgement passed that Sec 204 CrPc provides the court the power to ask for attendance of the accused when taking cognizance of an offence. The question of presence of accused via summons does not hinder the court to pass an order regarding refusal or grant of bail. Hence, the court held that there was no substantive reason to recall the order passed on June 7,2019. The applicant has put forth contentions solely based upon interpretations of the mentioned sections. The court provided the applicant with the remedy to challenge the order passed by the court. The court further clarified that all issues raised by the applicant have been dealt with earlier as well as the current order. It was laid down that such a petition was not maintainable in law and was rejected.

REFERENCES USED

IndianKanoon.org

This article is written by Ravishma Sharma, a student at Vivekananda Institute of Professional Studies, 4^th Year, an Intern at Legal Vidhya.

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