Nazma vs Javed @ Anjum

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:

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:

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:

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 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:

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.

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