1. Instant criminal miscellaneous petition involves manifold legal questions that run as follows :
(i) Whether after rejection of anticipatory bail application by the High Court, is the accused entitled to make second bail application before the Sessions Court under Section 438, Cr.P.C ?
6. The accused petitioners in the instant criminal miscellaneous petition seek to quash the. aforequoted order dated November 7, 2000.
7. Mr. Suresh Sahni, learned Counsel for the accused petitioners vehemently canvassed that the matter could not have been remitted back but ought to have been dealt with by the High Court under its jurisdiction in order to settle the controversy between the parties once for all. It was further contended that the Sessions Judge has not exercised the powers under Sub-section (2) of Section 439, Cr.P.C. independently and the impugned order stands influenced by the order dated October 11, 2000 passed by the High Court. It was next contended that the Sessions Judge has concurrent jurisdiction under Section 438, Cr.P.C. along with the High Court and is free to exercise the same in the changed circumstances. Grant of indulgence under Section 438, Cr.P.C. is a discretionary matter and cannot be put in a strait jacket formula. The discretion was rightly exercised by the Sessions Judge looking to the fact that accusations levelled against the accused petitioners do not connect them even remotely with the alleged offences. The petitioners did not conceal the fact of earlier rejection order of the High Court and put a specific note on the second bail application to this effect and also filed detailed affidavit. The second bail application was maintainable and the complainant had no locus standi to make cancellation application under Sub-section (2) of Section 439, Cr.P.C. Learned Counsel also urged that the accused petitioners never misused the liberty. Two of the accused petitioners are women and considerations of equity should prevail as no purpose will be served to send them to Jail. In support of his contentions learned Counsel placed reliance on various judicial pronouncements, those shall be dealt with in the later part of this judgment.
8. Per contra Mr. M.K. Kaushik, learned Counsel for the complainant supported the impugned order and urged that petition under Section 482, Cr.P.C. is not maintainable against the impugned order. Learned Counsel further contended that the course adopted by the learned Sessions Judge while passing the impugned order was not only contrary to settled principles of judicial discipline and propriety but also contrary to statutory provisions. The complainant has locus standi to assail the arbitrary and illegal order of the Sessions Judge. Various authorities cited by the learned Counsel shall be referred at appropriate juncture.
Locus standi of complainant in seeking cancellation of bail under Section 439(2) of Cr.P.C.
18. That takes me to another submission of the learned Counsel for the accused petitioners in regard to locus standi of the complainant in seeking cancellation of bail under Sub-section (2) of Section 439, Cr.P.C Placing reliance on Thakur Ram v. State of Bihar, AIR 1966 SC 911, it was contended that only the State being aggrieved party could take all steps necessary and the complainant had no locus standi to file even criminal revision. Learned Counsel for the complainant refuted this argument by placing reliance on Pratap v. State of U.P., (1973) 3 5CC 690, and Hari Bhagwan Bansal v. State of Rajasthan, S.B. Cr. Revision Petition No. 182/1977 decided by this Court on January 27,1998. In these cases it has held that private party can draw the attention of the High Court towards an illegal, improper and incorrect findings of the subordinate Courts.