Madan Mohan vs The State Of Rajasthan

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 2 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 3 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 197 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 4 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.

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.

7. The Criminal Revision Petition stands disposed off accordingly.” (Emphasis supplied) 6

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. 8

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.

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.

December 14, 2017 12