MANU/DE/0571/1989

Equivalent Citation: 1989(17)DRJ278, (1989)ILR 2Delhi544

IN THE HIGH COURT OF DELHI
Criminal Miscellaneous (Main) Appeal No. 838 of 1989
Decided On: 25.09.1989
Appellants: Qamaruddin
Vs.
Respondent: R.P. Sharma and Anr.
Hon'ble Judges/Coram:
S. Duggal, J.
Counsels:
Mehmood Pracha and Satish Aggarwal, Advs
Subject: Customs
Subject: Criminal
Acts/Rules/Orders:
Code of Criminal Procedure, 1973 (CrPC) - Section 397(2)
Cases Referred:
Amar Nath and Ors. vs. State of Haryana and Anr. MANU/SC/0068/1977; Nilu and Ors. vs. The
State MANU/OR/0145/1983; Madhu Limaye vs. The State of Maharashtra MANU/SC/0103/1977
Authorities Referred:
Halsbury's laws of England
Citing Reference:
Affirmed

Discussed

Distinguished

Case Note:
Criminal Procedure Code - Sections 397(2) and 482--An order granting bail is a final
order and an order rejecting bail may be an interlocutory order. Therefore the
revision would He against an order granting bail.
JUDGMENT
S. Duggal, J.
(1) In this petition filed under Section 482 of the Criminal Procedure Code, the petitioner seeks
quashing of the order passed in revision by the Additional Sessions Judge, New Delhi, on 8th
May, 1989 where by he allowed the revision petition filed by the customs authorities through
the Air Custom Officer and set aside the order passed by the Additional Chief Metropolitan
Magistrate, New Delhi on 17th April, 1989, ordering release of the petitioner, on bail.

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(2) The facts giving rise to this petition are that the petitioner was arrested on 3rd January,
1989 for offence punishable under Sections 132 and 135(i)(a) of the Customs Act and Section 5
of the Imports and Export (Control) Act, on his arrival at Indira Gandhi International Airport, on
the allegation that he smuggled gold weighing 349.560 grams of foreign making into India,
having concealed it and without declaration, value of which gold was at Rs. l,09,393.00 . On
bail application being filed, the Additional Chief Metropolitan Magistrate by short order allowed
the petition by observing that no useful purpose was going to be served by detaining the
accused in custody because the trial was likely to take some time and directed that he be
released on his furnishing personal bond in the sum of Rs. 50,000.00 with two sureties in the
like amount ; one of whom must be local, subject further to the condition that he shall not
leave the country without prior permission of the Court.
(3) The department challenged this order by means of a revision petition, which was heard by
an Additional Sessions Judge, New Delhi. The learned judge repelled both the arguments
addressed before him, firstly as to the maintainability of the revision petition, and secondly as
to the correctness of the order of bail on merits, on the view that on the facts and
circumstances of this case, the order of bail could not be treated as interlocutory order so as
bar the revisional jurisdiction under section 397(2) of the Code and as such the order was
revisable and that in view of the fact that the petitioner was a foreign national with no
permanent abode or property in India, there was every likelihood of his absconding during trial
and as such the Additional Chief Metropolitan Magistrate erred in ordering his release on bail,
overlooking the requirement of securing the presence of the accused during trial.
(4) Mr. Mehmood Parcha, Advocate appearing for the petitioner, confined his arguments
primarily to the question of maintainability of the revision petition, on the contention that the
order of bail was an interlocutory order, and as such there was a clear bar to the maintainability
of the revision petition in view of the provisions of Section 397(2) of the Code of Criminal
Procedure, and thus the order passed by the Additional Sessions Judge, was liable to be
quashed. His main reliance is on the observations of the Supreme Court in the case of Amar
Nath and others v. State of Haryana and another, MANU/SC/0068/1977 : 1977CriLJ1891 ,
where while enumerating instances of orders which could be deemed to be interlocutory, their
Lordships had mentioned an order of bail to be one of such orders.
(5) The learned counsel pressed his point vehemently relying further on a judgment of Orissa
High Court in the case of Nitu and others v. The State MANU/OR/0145/1983 : 56(1983)
CLT123 , where the view was reiterated that the orders granting, refusing or cancelling bail
were introductory orders which could not be revised by the superior court in view of the
statutory bar. Because of his insistence on this point of law, he has has not touched upon the
question of merits of the case as to whether it was on facts a fit case for bail or not but
generally a added that it was not a correct view to take that request of every foreign national
for bail should be declined.
(6) Mr. Satish Aggarwal, appearing for the respondent without filling any reply for the reason
that only points of law were agitated, contended that the order allowing bail could not be
considered to be an interlocutory order and further that it depended upon the nature of the
order and the stage at which it is passed and the peculiar facts and circumstances of the case
as to whether to treat an order to be a final order or an interlocutory order.
(7) His emphatically reliance is on a judgment of the Bombay High" Court in the case of Miss
Shakuntah v. Roshonlal Aggarwal and others. 1985 Cri. L.J. 68, wherein it was held that every
order of bail could not be considered to be interlocutory and that in a large variety of cases
depending upon the nature of the proceedings and the peculiar facts and circumstances of the
case, the order of bail may be treated as final order. He further submitted that in fact this
question has already been examined by learned Single Judge of this Court in Criminal Misc.
(Main) 746/89. Nalla Thamby Sritharan v. Shri Uma Shankar, Air Customs Officer, New Delhi,
decided on May 23, 1989, wherein on a review of the case law it was held that on facts of the
given case, which were almost identical to the present case, revision petition against order of
granting bail, was competent before the Additional Sessions Judge had not erred in admitting
the same. Mr. Aggarwal Therefore argued that the question is Therefore no longer open. and it

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was a fit case where the petitioner ought not to have been considered for bail in as much as he
was a Pakistani national involved in an offence of smuggling large quantity of gold into India
and there was every possibility of his not being remaining available for trial after his release on
bail and thus the interest of justice required that in order to see that he remained available to
face trial, that bail be declined.
(8) I have examined the issue raids by the learned counsel for the petitioner with earnest care.
lam in respectful agreement with the view expressed by the Bombay High Court, in the case of
Miss R. Shakuntla (supra) and which has been endorsed by a learned Single Judge of this Court
in the case of Nalla Thamby Sritharan (supra).
(9) I would like further to add that reliance by the counsel for the petitioner on the observations
of Amar Nath's case (supra) are wholly misconceived because the question as to whether an
order granting bail was to be treated as a final order or interlocutory order, was not at issue in
the said case and their Lordships only by way of illustration mentioned order of bail as one of
the cases which could be deemed as interlocutory. The case before Court actually involved an
order of summoning of the accused persons and on the view that it closed one stage of the
proceedings and vitally affected rights of the person summoned as an accused, it could not be
treated as an interlocutory order so as to bar right of revision.
(10) The position has been elucidated further in the case of Madhu Limaye v. State of
Maharashtra. MANU/SC/0103/1977 : 1978CriLJ165 , where it was observed quoting from
Halsbury's laws of England that ;
"A judgment of order may be final for one purpose and interlocutory for another."
(11) It was observed further in Madhu Limaye's case (supra) that only that order which does
not deal with the final rights of the parties, can be termed as interlocutory and further that even
certain orders which would be clearly treated as interlocutory orders, took in their embrace a
final adjudication so far as certain rights of the parties were concerned and to that extent, such
orders cannot be treated as interlocutory orders. The court also cautioned:
IT is neither advisable, nor possible, to make a catalogue of orders to demonstrate
which kinds of orders would be merely, purely or simply interlocutory and which
kinds of orders would be final, and then to prepare an exhaustive list of those types
of. orders which will fall in between the two."
(12) On a cumulative reading of the aforesaid two judgments of the Supreme Court, it can
certainly be said that the Supreme Court in the latter case of Madbu Limaye (supra), which was
also by a larger Bench, indicated that the proposition of law indicated in the Amar Nath's case
(supra), required certain modifications and that each order needed to be examined in its
context and then a view taken as to whether the said order was ii. final order or an
interlocutory order depending upon the situation whether the said order finally determined the
rights of the parties in respect to given stage or was simply a step in and in the course of
proceedings like summoning of witnesses, issuing of commission or order of production of
documents etc.
(13) Judged on this criterion, I am of the considered view that an older rejecting bail may be
Interlocutory because subsequent applications are maintainable on fresh grounds being shown,
or at different stages of enquiry or trial but as against that, the order of grant of ball finally
disposes of the application, and the Department's rights are substantially affected in the sense
that in a given case it may be possible to show to the Court that there was reasonable
apprehension that the presence of the accused is not possible to be secured and that its rights
to have the accused face the trial would by vitally affected, Such an order has to be treated as
a final order, in the sense that revision petition against such an order would not be barred. To
hold otherwise would be tantamount to making a magistrate the sow repository of the power to
refuse or grant bail. Such a proposition can certainly be not countenanced,

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(14) I am in full agreement in this respect with the view taken by the Bombay High Court in the
case of Miss R. Shakuntla (supra' and the observations made therein to the effect that :
"AN order which itself brings the entire proceedings to an end cannot be considered
to be an interlocutory order,"
(15) I Therefore do not find that any case is maid out for exercise of inherent jurisdiction of this
court in the proceedings under Section 482 Cr. P.C. The order passed by the Additional Sessions
Judge does not suffer from any jurisdictional error or illegality.
(16) I also find that the order of bail was rightly set aside on the facts of this case because the
question is no longer rest integra to the effect that the requirements of securing presence of the
accused in a trial is a predominant consideration for refusing bail in case there is a reasonable
apprehension that the accused might flee from the justice, and the category of foreign nationals
is one such category. The Additional Chief Metropolitan Magistrate certainly misdirected himself
by nut keeping this important requirement of having presence of the accused for trial in view
while considering the application for bail. The observation that the trial was likely to take long is
also not justified because it was certainly a situation which the trial court could manage
effectively by ensuring expeditious trial a factor which was exclusively within his power, a well
as control. There was no justification to order release of the petitioner on bail on this count,
(17) For the foregoing reasons the petition merits dismissal and is dismissed accordingly.

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