1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Criminal Application No. 3220 of 2009 The State of Maharashtra v. Abhay Vaidya Criminal Writ Petition No. 538 of 2009 Abhay Vaidya v. State of Maharashtra -------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. Ms Bharti Dangre, Addl. P.P. For State Mr R.S. Kurekar, Adv for respondent Coram : A.P. Bhangale, J Dated : 4th February 2010 1. Heard learned counsel for the parties. The State of Maharashtra has prayed for cancellation of bail granted by order dated 31.12.2008 by learned 2nd Adhoc Additional Sessions Judge, Nagpur in Misc. Criminal Application No. 2066 of 08 whereby conditional bail was granted in favour of applicant directing him to execute PR Bond of Rs. 2 lacs with surety/sureties in the equal amount with further conditions which included direction to the respondent to deposit sum of Rs. 1 crore with Samta Sahakari Bank Limited, Bhagwaghar Branch, Dharampeth, Nagpur by 28.1.2009 and Rs. 1 crore by 27.2.2009 failing which order granting bail was to stand vacated automatically. Cancellation of bail is sought by the State Government vide Criminal Application No. 3220 of 2009 while Respondent-accused has prayed for relaxation of condition no. 6 2 whereby he is directed to deposit Rs. 2 crores in aggregate, via Criminal Writ Petition No. 538 of 2009. 2. Learned Additional Public Prosecutor strenuously argued that respondent-accused has played active role in fraud and has siphoned off crores of rupees. According to Ms Dangre submits that audit report makes a special mention about the collusion of bank officials with respondent-accused. She urged that bail granted by the Adhoc Addl. District Judge deserves to be cancelled. 3. Mr Kurekar, on the other hand, submitted that order granting bail need not be interfered with. On the contrary, according to learned counsel for respondent-accused, condition no.6 directing respondent-accused is too harsh and is discriminatory inasmuch as similarly situated co-accused have been released on anticipatory bail on furnishing cash surety of Rs. 5000/- each. He prayed that application filed by the State be dismissed and petition filed by respondent-accused may be allowed. 4 Learned counsel for petitioner Abhay Vaidya has relied upon Keshab Narayan and anr v. The State of Bihar reported in 1985 Cri.L.J. 1857 to urge that if condition of deposit of Rs. 2 crores which is excessively onerous is allowed to stand, it would amount to denial of bail. 3 5. It is well-established that if the order granting bail is cryptic, non-speaking, passed without any valid reasons or without going through the pros and cons of the matter, it can be put to question and may be cancelled. The High Court can interfere with the order which may result in miscarriage of justice or which is palpably illegal or unjustified. 6. The Sessions Judge has recorded valid reasons for releasing the applicant on bail. It has been observed that similarly circumstanced borrowers and office bearers of the Bank have already been released on bail. Respondent-accused is said to be a rank defaulter and had assured before the Sessions Court that he was very much ready and willing to pay off the liability. 7. I do not find any overwhelming circumstances or cogent grounds which call for cancellation of bail in this case. Criminal Application No. 3220 of 2009 is accordingly rejected. 8. As regards the relaxation of condition, petitioner had moved before the Additional Sessions Judge vide Misc. Criminal Application No. 1318 of 2009. However, by order dated 13th August 2009 the learned Addl. Sessions Judge has rejected the application solely on the ground that it would amount to modification or alteration of the order which is not permissible in law. Sub-section (1) (a) of Section 439 Cr.P.C. provides that High Court or Court of Session may direct that any person 4 accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437 may impose any condition which it considers necessary for the purposes mentioned in that sub-section and also in the interest of justice. 9. It is settled position of law that a court cannot alter or review its judgment or final order after it is signed except to correct clerical or arithmetical error. As a general rule, as soon as a judgment pronounced or order is made by a court, it becomes functus officio and has no power to review, override, alter or interfere with it. It is no doubt true that power of review is not an inherent power and must be conferred on a court by a specific or express provision to that effect. No power of review has been conferred by Criminal Procedure Code, 1973 on a criminal court and therefore it cannot review an order passed or judgment pronounced. However, in this particular case, learned Sessions Judge has lost sight of the fact that the order on bail application is an interlocutory order and it has no trapping of a final order or colour of a “judgment” or “final order” disposing of a criminal case. 10. This Court in Swan Kher Gulsan and ors v. Assistant Collector of Customs and anr reported in 1993 Cri.L.J. 3569 has held that the Court can reconsider quantum of bailment. There are innumerable instances where the Courts have considered 5 application for relaxation of condition (s) imposed by them while ordering release of the accused on bail, obviously owing to change in circumstances or for any acceptable and just the reason that such relaxation of condition, if made, would not amount to modification/ review of a judgment or final order as it is an application in relation to an interlocutory/interim relief. 10. It is settled position of law that relief under Article 227 of the Constitution of India has to be refused if there is equally efficacious statutory remedy available to the petitioner. Where there is appropriate or efficacious remedy available, this Court should keep its hands off and should not exercise powers vested in it under Article 227 of the Constitution of India. Obviously, in the present case, learned Additional Sessions Judge could have considered request for relaxation of condition. 11. In the result, impugned order dated 13th August 2009 passed by the District Judge-11 & Additional Sessions Judge, Nagpur in Misc. Criminal Application No. 1318 of 2009 is quashed and set aside. It is made clear that the Additional Sessions Judge is empowered to consider request of the petitioner for relaxation of certain condition. Matter is, therefore, remitted back to the said Court for consideration of application for relaxation of condition afresh on its own merit. Petitioner is directed to remain present through Advocate (since he is in jail) before the Additional Sessions Judge, Nagpur on 6 10th February 2010. Petition stands disposed of accordingly. Hamdast granted. Registrar (Judicial) of this Court is requested to communicate copy of this order to the concerned Court for necessary action. Judge. Hsj