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AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

CRMP No.1835 of 2023

1.Aman Kumar Singh, Aged about 54 years, S/o Late Shri Yadu

Nath Singh, R/o A-3, Shahapura, Bhopal 462039, Madhya

Pradesh, presently at Ahmedabad, Gujrat.

2.Yashmin Singh, Aged about 51 years, W/o Shri Aman Kumar

Singh, R/o a-3, Shahapura, Bhopal 462039, Madhya Pradesh.

---- Petitioners

Versus

State of Chhattisgarh, Through Superintendent of Police, the

Economic Offences Wing/Anti-Corruption Bureau Gaurav Path,

Opp. Jai Jawan Petrol Pump, Telibandha, Raipur-492001,

Chhattisgarh.

---- Respondent

(Cause Title is taken from Case Information System)

For Petitioners : Mr. Abhishek Sinha, Senior Advocate along with

Mr. Vivek Sharma, Advocate

For State : Mr. Amrito Das, Additional Advocate General

Hon'ble Shri Justice Rakesh Mohan Pandey

Order on Board

20.09.2023

1)This petition under Section 482 of the Code of Criminal

Procedure, 1973 (hereinafter referred to as "the Code") has

been filed by the petitioners for modification/deletion of

conditions No. 1, 5, 6 and 7 imposed by this Court vide

common order dated 31.03.2023 passed in M.Cr.C.(A.) Nos.

328 of 2023 and 329 of 2023.

2)The facts of the present case, are that, earlier, the

petitioners had moved separate applications under Section 2023:CGHC:23411

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438 of the Cr.P.C. for the grant of anticipatory bail before

this Court and their applications were registered as M.Cr.C.

(A.) Nos. 328/2023 and 329/2023 and the same were

allowed vide order dated 31.03.2023 with the following

conditions:-

“1. The applicants shall remain present before the

Police Station concerned on 4

th

day of every month

till the trial is over.

2. The applicants shall cooperate with the

investigation agency and make themselves

available for interrogation whenever required;

3. The applicants shall not directly or indirectly

make any inducement, threat or promise to any

witness acquainted with the facts of the case so as

to dissuade him/her from disclosing such facts to

the court or to any police officer;

4. The applicants shall not obstruct or hamper the

police investigation and not to play mischief with

the evidence collected or yet to be collected by the

police;

5. The applicants shall not leave the territory of

India, without prior permission of the court, till trial

is over;

6. The applicants shall, at the time of execution of

the bond, furnish their address, Aadhaar Card and

mobile number to the investigating officer, and

shall not change the (residence) till the final

disposal of the case;

7. The applicants shall surrender their passport, if

any, before the investigating officer within a week

and, if they do not possess any passport, they

shall file an affidavit to that effect before the

investigating officer;

8. The applicants shall regularly remain present 2023:CGHC:23411

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during the trial, and cooperate with the Trial Court

to complete the fair trial for the above offences.

If breach of any of the above conditions is

committed, it would be open for the State to move

appropriate application for cancellation of

anticipatory bail.”

3)Facts in brief are that a complaint was made against the

petitioners on 11.10.2019 in the Office of the Chief Minister

of the State making allegations regarding their involvement

in corruption and money laundering and it was also alleged

that assets held by the petitioners are disproportionate to

the their known sources of income. The matter was

enquired into and an order was passed for enquiry and

preliminary enquiry bearing P.E. No. 35/2019 was

registered. After enquiry, FIR was registered against the

petitioners on 28.02.2020, thereafter; they preferred W.P.Cr.

Nos. 88 of 2020 and 154 of 2020 for quashing the FIR. The

interim application moved by petitioner No.1 was allowed by

this Court vide order dated 28.02.2020. The Co-Ordinate

Bench vide order dated 10.01.2022, allowed both the

petitions and quashed the FIR No. 09/2020. The order dated

10.01.2022 passed in W.P.Cr. Nos. 88 of 2020 and 154 of

2020 was challenged before the Hon’ble Supreme Court in

SLP Criminal No. 1703-1705 of 2022 and SLP Criminal No.

1769-1770 of 2022 by the State of Chhattisgarh and the

complainant. The Hon’ble Supreme Court allowed the 2023:CGHC:23411

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Special Leave Petitions and set aside the order passed by

this Court in W.P.Cr. Nos. 88 of 2020 and 154 of 2020.

Thereafter, the petitioners moved separate applications for

the grant of anticipatory bail before this Court and this Court

vide order dated 31.03.2023 passed a common order and

allowed the anticipatory bail applications by imposing certain

conditions.

4)Earlier, the petitioners had filed Cr.M.P. No. 794 of 2023

before this Court seeking modification of the conditions of

the anticipatory bail order and this Court vide order dated

13.04.2023 dismissed the petition as this Court was not

inclined to entertain the petition at that stage and it was also

observed that the conditions imposed in the anticipatory bail

order are just and reasonable.

5)Mr. Abhishek Sinha, learned Senior Advocate appearing for

the petitioners would submit that the present petition has

been filed for modification/deletion of conditions No. 1,5,6

and 7 of the order dated 31.03.2023 passed in M.Cr.C.(A.)

Nos. 328/2023 and 329/2023 by this Court, on the ground

that earlier, there was interim protection granted by this

Court in W.P.Cr. Nos. 88 of 2020 and 154 of 2020 and on

10.01.2022 both cases were finally decided in favor of the

petitioners thereafter, the Hon’ble Supreme Court, while

setting aside the order dated 10.01.2022 granted a 2023:CGHC:23411

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protective umbrella for a period of three weeks vide order

dated 01.03.2023, thereafter, anticipatory bail was granted

to the petitioners vide order dated 31.03.2023 by this Court.

He would further submit that from the year 2020 to 2023

there was liberty granted to the respondent to continue with

the investigation but there is no substantial progress in the

investigation, and the same has not been completed till

date. He would further submit that the petitioners regularly

appear before the investigating agency, they are properly

cooperating in the investigation and all the relevant

documents have already been submitted before the

authorities/investigating agency. He would next contend that

the petitioners are the residents of India and in past, they

have held high offices, therefore, there is no likelihood of the

petitioners fleeing or absconding from the administration of

justice. The possibility of applicants tampering with the

witnesses is also negligible as most of the evidence is in the

form of documents.

6)Mr. Sinha would further submit that petitioner No.1 is

employed with India’s largest private sector company which

requires frequent travel within the country and outside the

country, whereas he has to appear on the 4th day of every

month before the investigating agency. He would further

submit that apart from the 4th day of every month, the 2023:CGHC:23411

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investigating officers summon the petitioners for

interrogation on other dates also. He would also submit that

petitioner no. 2 is a lady and she has liability of her family

and sometimes she wishes to travel along with her husband

within the country and outside the country and against both

the petitioners there is no substantial material available with

the Investigating Agency therefore final report has not been

filed yet. Thus, he would pray that the conditions No.1, 5, 6

and 7 enumerated in the order dated 31.03.2023 passed in

M.Cr.C.(A.) Nos. 328 of 2023 and 329 of 2023 may be

modified or diluted.

7)He has placed reliance on the judgment passed by the

Hon’ble Supreme Court in the matter of Bharesh Bipinbhai

Sheth v. State of Gujarat reported in (2016) 1 SCC 152,

the relevant para reads as under:-

“25.5. The proper course of action on an

application for anticipatory bail ought to be that

after evaluating the averments and accusations

available on the record if the court is inclined to

grant anticipatory bail then an interim bail be

granted and notice be issued to the Public

Prosecutor. After hearing the Public Prosecutor

the court may either reject the anticipatory bail

application or confirm the initial order of granting

bail. The court would certainly be entitled to

impose conditions for the grant of anticipatory

bail. The Public Prosecutor or the complainant

would be at liberty to move the same court for

cancellation or modifying the conditions of

anticipatory bail at any time if liberty granted by

the court is misused. The anticipatory bail granted

by the court should ordinarily be continued till the

trial of the case.”

8)In the matter of Usman Bhai Dawoodbai Menon v. State 2023:CGHC:23411

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of Gujarat reported in (1988) 2 SCC 271, the Hon’ble

Supreme Court held in para 24 as under:-

“24.At the conclusion of the hearing on the legal

aspect, Shri Poti, learned counsel appearing for

the State Governrment contended, on

instructions, that an order passed by a

Designated Court for grant or refusal of bail is not

an 'interlocutory order' within the meaning of s.

19(1) of the Act and therefore an appeal lies. We

have considerable doubt and difficulty about the

correctness of the proposition. The expression

'interlocutory order' has been used in s. 19(1) in

contradistinction to what is known as final order

and denotes an order of purely interim or

temporary nature. The essential test to distinguish

one from the other has been discussed and

formulated in several decisions of the Judicial

Committee of the Privy Council, Federal Court

and this Court. One of the tests generally

accepted by the English Courts and the Federal

Court is to see if the order is decided in one way,

it may terminate the proceedings but if decided in

another way, then the proceedings would

continue. In V. C. Shukla v. State through C.B.I.,

[1980] Suppl. SCC 92, Fazal Ali, J. in delivering

the majority judgment reviewed the entire case

law on the subject and deduced therefrom the

following two principles, namely, (i) that a final

order has to be interpreted in contra- distinction to

an interlocutory order; and (ii) that the test for

determining the finality of an order is whether the

judgment or order finally disposed of the rights of

the parties. It was observed that these principles

apply to civil as well as to criminal cases. In

criminal proceedings, the word 'judgment' is

intended to indicate the final order in trial

terminating in the conviction or acquittal of the

accused. Applying these tests, it was held that an

order framing a charge against an accused was

not a final order but an interlocutory order within

the meaning of s. 11(1) of the Special Courts Act,

1979 and therefore not appealable. It cannot be

doubted that the grant or refusal of a bail

application is essentially an interlocutory order.

There is no finality to such an order for an

application for bail can always be renewed from

time to time. It is however contended that the

refusal of bail by a Designated Court due to the

non-fulfilment of the conditions laid down in s.

20(8) cannot be treated to be a final order for it

affects the life or liberty of a citizen guaranteed

under Art. 21. While it is true that a person

arraigned on a charge of having committed an

offence punishable under the Act faces a 2023:CGHC:23411

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prospect of prolonged incarceration in view of the

provision contained in s. 20(8) which places

limitations on the power of a Designated Court to

grant bail, but that by itself is not decisive of the

question as to whether an order of this nature is

not an interlocutory order. The Court must

interpret the words 'not being an interlocutory

order' used in s. 19(1) in their natural sense in

furtherance of the object and purpose of the Act

to exclude any interference with the proceedings

before a Designated Court at an intermediate

stage. There is no finality attached to an order of

a Designated Court granting or refusing bail.

Such an application for bail can always be

renewed from time to time. That being so, the

contention advanced on behalf of the State

Government that the impugned orders passed by

the Designated Courts refusing to grant bail were

not interlocutory orders and therefore appealable

under s. 19(1) of the Act, cannot be accepted. ”

9)In the matter of Amar Nath v. State of Haryana [(1977) 4

SCC 137] in para-6 the Hon’ble Supreme Court held thus:-

“6. Let us now proceed to interpret the provisions of s.

397 against the historical background of these facts.

Sub- section (2) of s. 397 of the 1973 Code may be

extracted thus :

"The powers of revision conferred by Sub- section (1)

shall not be exercised in relation to any interlocutory

order passed ;in any appeal, inquiry, trial or other

proceeding."

The main question which falls for determination in this

appeal is as to, the what is the connotation of the term

"interlocutory order" as appearing in sub-s. (2) of s. 397

which bars any revision of such an order by the High

Court. The term "interlocutory order" is a term of well-

known legal significance and does not present any

serious diffident. It has been used in various statutes

including the Code of Civil Procedure, Letters Patent of

the High Courts and other like statutes. In Webster's

New World Dictionary "interlocutory" has been defined

as an order other than final decision. Decided cases

have laid down that interlocutory orders to be appealable

must be those which decide 'the rights and liabilities of

the parties concerning a particular aspect. It seems to,

us that the term "interlocutory order" in s. 397(2) of the

1973 Code has been used in a restricted sense and not

in any broad or artistic sense. It merely denotes orders

of a purely interim or temporary nature which do not

decide or touch the important rights, or the liabilities of

the parties. Any order which substantially affects the,

right of the accused, or decides certain rights of the

parties cannot be said to be an interlocutory order so as 2023:CGHC:23411

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to bar a revision to the High Court against that order,

because that would be against the very object which

formed the basis for insertion of this particular provision

in s. 397 of the, 1973 Code. Thus, for instance, orders

summoning witnesses, adjourning cases, passing orders

for bail, calling for reports and such other steps in aid of

the pending proceeding, may no doubt amount to

interlocutory orders against which no revision would lie

under s. 397 (2) of the 1973 Code. But orders which are

matters of moment and which affect or adjudicate the

rights of the accused or a particular aspect of the trial

cannot be said to be interlocutory order so as to be.

outside the purview of the revisional jurisdiction of the

High Court.”

10) With regard to the conditions of bail, he relied on the matter

of Parvez Noordin Lokhandwalla v. State of Maharashtra

and another reported in (2020) 10 SCC 77, where it has

been held by the Hon’ble Supreme Court that the conditions

which are imposed by the court must bear a proportional

relationship to the purpose of imposing the conditions.

11)The Hon'ble Supreme Court recently in Aparna Bhat and

Ors v. State of Madhya Pradesh and Anr [(2021)

Criminal Appeal No. 329/2021] had an occasion to

consider the conditions imposed by the Madhya Pradesh

High Court while granting bail under Section 439 of the

Cr.P.C. directing the accused to visit the house of the

complainant with rakhi thread and a box of sweet requesting

the complainant to tie the rakhi and also bend with the

promise to protect her to the best of his ability for all times to

come. In that case, the accused was facing a trial for

offences punishable under Sections 452, 354A, 323 and

506 of the IPC. The Hon'ble Supreme Court set aside the 2023:CGHC:23411

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said conditions, expunged them from the record and issued

slew of directions.

12)With regard to the delay in investigation, he has placed

reliance on Amitbhai Anil Chandra Shah v. Central

Bureau of Investigation and another [(2014) 2 SCC 151],

wherein it was held thus:

"58.2. The various provisions of the Code of Criminal

Procedure clearly show that an officer-in- charge of a

police station has to commence investigation as provided

in Section 156 or 157 of the Code on the basis of entry of

the first information report, on coming to know of the

commission of cognizable offence. On completion of

investigation and on the basis of the evidence collected,

the investigating officer has to form an opinion under

Section 169 or 170 of the Code and forward his report to

the Magistrate concerned under Section 173(2) of the

Code.”

13)In the matter of Jagdish Arora and another v. Union of

India through Senior Intelligence Officer passed in MCRC

No. 4923 of 2022 on 31.03.2022 wherein the High Court of

Madhya Pradesh invoked its inherent powers under Section

482 of the Cr.P.C. for the modification of conditions

enumerated in the bail order and made the following

observation, which reads as follows:-

“8.1 It is also settled that grant of bail is a rule whereas

its denial is an exception. Once bail is granted subject

to certain conditions by the High Court u/S.439(1)(a) of

Cr.P.C. as is the case herein, the power to modify or

delete the conditions subject to which bail is granted, is

also inherently vested with the High Court.

8.2 The power of amending or deleting any condition,

subject to which bail order u/S.439(1)(a) of Cr.P.C. is

granted, is however not expressly provided in Cr.P.C.

Thus, the only course available for seeking and

granting modification/ deletion of such a condition is by

invoking the inherent powers of this Court u/S.482 of 2023:CGHC:23411

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Cr.P.C. to ensure the ends of justice.

8.3 Section 482 of Cr.P.C. saves inherent powers of

this Court to be exercised inter alia to secure the ends

of justice. The ends of justice can only be secured

when in absence of any express provision this Court is

not prevented from deleting/modifying any of the

conditions subject to which an order of bail u/S.439(1)

(a) of Cr.P.C. is passed. If such inherent powers are

otherwise not available to this Court u/S.482 of Cr.P.C.,

then object of insertion of Section 482 of Cr.P.C. would

stand defeated and this Court would be rendered a

toothless tiger.

9. The Legislature while enacting the Code of Criminal

Procedure could never have approved a situation

where this superior Court is handicapped to exercise

its inherent powers to modify/delete a condition

imposed u/S.439(1)(a) of Cr.P.C. despite existence of

compelling circumstances merely because of absence

of enabling provision in the Cr.P.C.

9.1 The object behind bestowing inherent powers in

this Court is to do complete justice and to prevent

miscarriage of justice. The inherent powers are saved

with this Court to be exercised in such circumstances

where cause for doing complete justice or preventing

failure of justice exists, but there is no express

provision in Cr.P.C. As such Constitutional Courts are

saved with such inherent powers to do complete justice

without being inhibited or disabled by absence of

enabling provision.”

14)Mr. Sinha lastly submits that the Courts certainly are entitled

to impose conditions for the grant of bail, further, the liberty

to move before the concerned court for modification of

conditions is available to the petitioners. He would further

submit that the order granting bail/anticipatory bail is an

interlocutory order and it does not decide the final rights as

such Section 362 of the Cr.P.C. would not attract. His next

contention is that the orders made on applications are

neither a judgment nor final order, it is merely interlocutory

order in nature, and therefore, he would submit that 2023:CGHC:23411

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conditions of the deposit of passport can be relaxed as the

deposit of passport for long would amount to unreasonable

restriction on the liberty of movement of the accused.

15)On the other hand, Mr Amrito Das, the learned Additional

Advocate General representing the respondent/State,

opposes the submission made by learned counsel for the

petitioners. He contends that the instant petition under

Section 482 of the Cr.P.C. is misconceived. Mr. Das argues

that a conjoint petition has been filed to seek a modification

of the order passed by this Court on 31.03.2023 in two

separate anticipatory bail applications [(M.Cr.C.(A.) Nos.

328 of 2023 and 329 of 2023], rendering the petition not

maintainable. He submits that the previously filed Cr.M.P.

No. 794 of 2023 was dismissed at the motion stage by this

Court vide order dated 13.04.2023. In that order, the

conditions imposed while granting anticipatory bail were

held to be in accordance with the judgment passed by the

Hon’ble Supreme Court in the matter of Sushila Agrawal v.

State (NCT of Delhi) reported in (2020) 5 SCC 1, thus, the

present petition lacks merit. Mr Das also emphasizes that

the conditions imposed are just and proper for ensuring the

smooth investigation of the case against the petitioners. He

further points out that the petitioners have sought this

instant modification which is not provided for under the 2023:CGHC:23411

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Code, except to the extent permissible under Section 362 of

the Cr.P.C. Mr. Das reiterates that this Court can modify,

alter, or review its earlier order only within the provisions of

Section 362 of the Cr.PC. Section 362 of the Cr.PC is a

specific provision that prohibits the Courts from altering or

correcting its own judgment or order, except for correcting

typographical or arithmetic errors. This section elucidates

that once the judgment or order is disposed of and signed,

the Court becomes functus officio. Thus, he would pray that

the petition may be dismissed.

16)He has placed reliance on the judgments passed by the

Hon’ble Supreme Court in the matters of Simrikhia v.

Dolley Mukherjee and Chhabi Mukherjee and another

reported in (1990) 2 SCC 437, Smt. Sooraj Devi v. Pyare

Lal and another reported in 1981 Cri LJ 296; Arun

Shankar Shukla v. State of UP and another reported in

1999 6 SCC 146; Hari Singh Mann v. Harbhajan Singh

Bajwa (2001 CRI LJ 128); Sunil Kumar v. State of

Haryana ( 2012) 5 SCC 398, and the judgment of High

Court of Allahabad passed in Application U/s 482 No. 6022

of 2022 on 02.11.2022 in the matter of Aparna Purohit v.

State of Uttar Pradesh, and one more judgment of High

Court Karnatka passed in the matter of Imran Khan and

another v. The State of Karnataka, Forest Department 2023:CGHC:23411

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reported in 2017 SCC OnLine Kar 2309.

17)In the matter of Simrikhia (supra), the Hon’ble Supreme

Court has held in para 5 and 6 as under:-

“5. Section 362 of the Code expressly provides that no

court when it has signed its judgment or final order

disposing of a case, shall alter or review the same

except ccto correct a clerical or arithmetical error save

as otherwise provided by the Code. Section 482

enables the High Court to make such order as may be

necessary to give effect to any order under the Code

or to prevent abuse of the process of any court or

otherwise to secure the ends of justice. The inherent

powers, however, as much are controlled by principle

and precedent as are its express powers by statute. If

a matter is covered by an express letter of law, the

court cannot give a go-by to the statutory provisions

and instead evolve a new provision in the garb of

inherent jurisdiction.

6. In Superintendent & Remembrancer of Legal Affairs

v. Mohan Singh' this Court held that Section 561-A

preserves the inherent power of the High Court to

make such orders as it deems fit to prevent abuse of

the process of the court or to secure the ends of

justice and the High Court must therefore exercise its

inherent powers having regard to the situation

prevailing at the particular point of time when its

inherent jurisdiction is sought to be invoked. In that

case the facts and circumstances obtaining at the time

of the subsequent application were clearly different

from what they were at the time of the earlier

application. The question as to the scope and ambit of

the inherent power of the High Court vis-a-vis an

earlier order made by it was, therefore, not concluded

by this decision.”

18)In the matter of Sooraj Devi (supra), the Hon’ble Supreme

Court in para 4 and 5 held as under:-

“4.The sole question before us is whether the High Court

was right in refusing to entertain Criminal Miscellaneous

Application No. 5127 of 1978 on the ground that it had no

power to review its order dated Ist September, 1970.

Section 362 of the Code of Criminal Procedure declares :

"Save as otherwise provided by this Code or by any

other law for the time being in force, no Court, when it has

signed its judgment or final order disposing of a case,

shall alter or review the same except to correct a clerical

or arithmetical error".

It is apparent that what the appellant seeks by the 2023:CGHC:23411

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application is not the correction of a clerical or arithmetical

error. What she desires is a declaration that the High

Court order dated Ist September, 1970 does not affect her

rights in the house property and that the direction to

restore possession to Pyare Lal is confined to that portion

only of the house property respecting which the offence of

trespass was committed so that she is not evicted from

the portion in her possession. The appellant, in fact, asks

for an adjudication that the right to possession alleged by

her remains unaffected by the order dated Ist September,

1970. Pyare Lal disputes that the order is not binding on

her and that she is entitled to the right in the property

claimed by her. Having considered the matter, we are not

satisfied that the controversy can be brought within the

description "clerical or arithmetical error". A clerical or

arithmetical error is an error occasioned by an accidental

slip or omission of the court. It represents that which the

court never intended to say. It is an error apparent on the

face of the record and does not depend for its discovery

on argument or disputation. An arithmetical error is a

mistake of calculation, and a clerical error is a mistake in

writing or typing. Master Construction Co. (P) Ltd. v. State

of Orissa and Another.

5.The appellant points out that he invoked the inherent

power of the High Court saved by s. 482 of the Code and

that notwithstanding the prohibition imposed by s. 362

the High Court had power to grant relief. Now it is well

settled that the inherent power of the court cannot be

exercised for doing that which is specifically prohibited by

the Code. Sankatha Singh v. State of U.P. It is true that

the prohibition in s. 362 against the Court altering or

reviewing its judgment is subject to what is "otherwise

provided by this Code or by any other law for the time

being in force". Those words, however, refer to those

provisions only where the Court has been expressly

authorised by the Code or other law to alter or review its

judgment. The inherent power of the Court is not

contemplated by the saving provision contained in

section 362 and, therefore, the attempt to invoke that

power can be of no avail. ”

19)In the matter of Hari Singh Mann (supra), the Hon’ble

Supreme Court in para 9 and 10 held as under:-

“9.There is no provision in the Code of Criminal

Procedure authorising the High Court to review its

judgment passed either in exercise of its appellate or

revisional or original criminal jurisdiction. Such a

power cannot be exercised with the aid or under the

cloak of Section 482 of the Code. This Court in State

of Orissa v. Ram Chander Agarwala [AIR 1979 SC

87] held:

"Before concluding we will very briefly refer to cases 2023:CGHC:23411

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of this Court cited by counsel on both sides, 1958

SCR 1226: (AIR 1958 SC 376) relates to the power

of the High Court to cancel bail. The High Court took

the view that under S.561A of the Code, it had

inherent power to cancel the bail, and finding that on

the material produced before the Court it would not

be safe to permit the appellant to be at large

cancelled the bail, distinguishing the decision in 72

Ind App 120: (AIR 1945 PC 94) (supra) and stated

that the Privy Council was not called upon to consider

the question about the inherent power of the High

Court to cancel bail under S.561A. In Sankatha Singh

v. State of U.P. (1962) Supp (2) SCR 871: (AIR 1962

SC 1208) this Court held that S.369 read with S.424

of the Code of Criminal Procedure specifically

prohibits the altering or reviewing of its order by a

court. The accused applied before a succeeding

Sessions Judge for re-hearing of an appeal. The

learned Judge was of the view that the appellate

court had no power to review or restore an appeal

which has been disposed of. The Supreme Court

agreed with the view that the appellate court had no

power to review or restore an appeal. This Court,

expressing its opinion that the Sessions Court had no

power to review or restore an appeal observed that a

judgment, which does not comply with the

requirements of S.367 of the Code, may be liable to

be set aside by a superior court but will not give the

appellate court any power to set it aside itself and re-

hear the appeal observing that "Sec.369 read with

S.424 of the Code makes it clear that the appellate

court is not to alter or review the judgment once

signed, except for the purpose of correcting a clerical

error. Reliance was placed on a decision of this Court

in Supdt. and Remembrancer of Legal Affairs W.B. v.

Mohan Singh, AIR 1975 SC 1002 by Mr.Patel,

learned counsel for the respondent wherein it was

held that rejection of a prior application for quashing

is no bar for the High Court entertaining a

subsequent application as quashing does not amount

to review or revision. This decision instead of

supporting the respondent clearly lays down,

following Chopra's case (AIR 1955 SC 633) (supra)

that once a judgment has been pronounced by a

High Court either in exercise of its appellate or

revisional jurisdiction, no review or revision can be

entertained against that judgment as there is no

provision in the Criminal Procedure Code which

would enable the High Court to review the same or to

exercise revisional jurisdiction. This Court entertained

the application for quashing the proceedings on the

ground that a subsequent application to quash would

not amount to review or revise an order made by the

Court. The decision clearly lays down that a judgment

of the High Court on appeal or revision cannot be

reviewed or revised except in accordance with the

provisions of the Criminal Procedure Code. The 2023:CGHC:23411

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provisions of S.561A of the Code cannot be invoked

for exercise of a power which is specifically prohibited

by the Code."

10.Section 362 of the Code mandates that no Court,

when it has signed its judgment or final order

disposing of a case shall alter or review the same

except to correct a clerical or arithmetical error. The

Section is based on an acknowledged principle of law

that once a matter is finally disposed of by a Court,

the said Court in the absence of a specific statutory

provision becomes functus officio and disentitled to

entertain a fresh prayer for the same relief unless the

former order of final disposal is set aside by a court of

competent jurisdiction in a manner prescribed by law.

The court becomes functus officio the moment the

official order disposing of a case is signed. Such an

order cannot be altered except to the extent of

correcting a clerical or arithmetical error. The reliance

of the respondent on Talab Haji Hussain's case

(supra) is misconceived. Even in that case it was

pointed that inherent powers conferred on High

Courts under Section 561A (Section 482 of the new

Code) has to be exercised sparingly, carefully and

with caution and only where such exercise is justified

by the tests specifically laid down in the section itself.

It is not disputed that the petition filed under Section

482 of the Code had been finally disposed of by the

High Court on 7.1.1999. The new Section 362 of the

Code which was drafted keeping in view the

recommendations of the 41st Report of the Law

Commission and the Joint Select Committees

appointed for the purpose, has extended the bar of

review not only to the judgment but also to the final

orders other than the judgment.”

20)In the matter of Sunil Kumar (supra), the Hon’ble Supreme

Court held in para 7 and 8 as under:-

“7. The High Court dealt with various propositions of

law while dealing with the averments raised on his

behalf including the application of the provisions of

Section 362 Cr.P.C. which puts a complete embargo

on the criminal court to reconsider any case after

delivery of the judgment as the court becomes

functus officio.

8. This Court in a recent judgment in State of Punjab

v. Davinder Pal Singh Bhullar & Ors. etc., AIR 2012

SC 364 dealt with the issue considering a very large

number of earlier judgments of this Court including

Vishnu Agarwal v. State of U.P. & Anr., AIR 2011 SC

1232 and came to the conclusion:

"Thus, the law on the issue can be summarised to the 2023:CGHC:23411

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effect that the criminal justice delivery system does

not clothe the court to add or delete any words,

except to correct the clerical or arithmetical error as

specifically been provided under the statute itself

after pronouncement of the judgment as the Judge

becomes functus officio. Any mistake or glaring

omission is left to be corrected only by the

appropriate forum in accordance with law."

21)In the matter of Aparna Purohit (supra), wherein the High

Court of Allahabad observed thus:-

“31.Herein, the High Court has assigned an

erroneous interpretation to the well settled

position of law, assumed expanded jurisdiction

onto itself and passed an order in contravention

of Section 362 of the Code cancelling the bail

granted to the Petitioners herein. Therefore, in

our considered opinion, the High Court is not

justified in reviewing its earlier order of grant of

bail and thus, the impugned judgment and order

requires to be set aside."

Perusal of the law relied on by Ld. senior

Counsel i.e. 'Jagdish Arora and another vs.

Union of India (supra)' would reveal that one of

the condition of the bail order passed by a co-

ordinate Bench was challenged by filing an

application under Section 482 Cr.P.C., seeking

modification of the final order and the same was

considered by a Division Bench of the Madhya

Pradesh High Court, which is of the view that

there is no express provision for deletion or

amendment of any condition of the bail order and

the only course available is of filing application

under Section 482 Cr.P.C. and also that the ends

of justice can only be secured in absence of any

express provision by invoking the inherent

powers provided under Section 482 Cr.P.C.for

modification of the condition of bail order and,

thus, proceeded to modify one of the condition

imposed by the co-ordinate Bench, while

enlarging the accused on bail. The law laid down

by the Hon'ble Madhya Pradesh High Court,

does not appear to be in consonance with the

legal principles enunciated by the Hon'ble

Supreme Court in the reports mentioned herein-

before and in the considered opinion of this

Court, the applicant could not take any benefit of

the same. A three-Judge Bench of Hon'ble

Supreme Court in Madhu Limaye v. The State of

Maharashtra MANU/SC/0103/1977 : (1977) 4

SCC 551, dealt with the invocation of inherent

power Under Section 482 for quashing

interlocutory order and noticed the principles in 2023:CGHC:23411

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relation to the exercise of the inherent power of

the High Court in para No. 9 and held that

barring some exceptions the same should not be

exercised as against the express bar of law

engrafted in any other provision of the Code.

Thus in the background of proposition of law and

reasons mentioned herein before I do not find

any merit in the application filed by the applicant

and the same is dismissed as such. ”

22)In the matter of Imran Khan (supra), the High Court of

Karnataka in para-9 has held as under:-

“9. The Learned Counsel has not brought any other

provision under Cr.PC under which, this Court can

modify, alter or review its earlier order except the

provision under Section 362 of Cr.PC. Therefore,

what is not granted under this particular provision

cannot be done or invented by the Court in order to

pass such order. Section 362 of Cr.PC is a specific

provision which prohibits the Courts from altering or

correcting its own Judgment or order except for

correcting the typographical error. When specific

provision prohibits the Court from doing certain acts,

it cannot be circumvented by the and of any other

provision under Cr.PC or by interpreting the provision

in any other manner, as the said provision is very

much clear. The said section clearly elucidates once

the Judgment or order is disposed of and signed, the

Court becomes functus officio.”

23)I have heard the submissions made by learned counsel for

the parties at length, considered their rival submissions

made herein above as also the judgments passed by the

Hon’ble Supreme Court and various High Courts and the

provision contained in Section 362 of Cr.P.C. and perused

the documents with utmost circumspection.

24)The petitioners have made a prayer for modification or

deletion of conditions no. 1, 5, 6 and 7 which say that the

petitioners shall remain present before the Police Station

concerned on the 4th day of every month till the completion 2023:CGHC:23411

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of the trial; the petitioners shall not leave the Country

without leave of the Court; in clause 7 the petitioners have

sought permission with regard to change of address as they

are residing in a rented house and lastly that the petitioners

shall surrender their passports. Petitioner no. 1 is employed

with one of the Country’s largest conglomerates, which

requires his frequent movement in connection with his job

within the country and outside the country. Petitioner No. 2

is a lady, who wishes to join her family and also wants to

visit outside the country along with her husband.

25)It would be advantageous to go through the provisions of

Section 362 of Cr.P.C. It reads as under:-

362. Court not to alter judgement. Save as

otherwise provided by this Code or by any other law

for the time being in force, no Court, when it has

signed its judgment or final order disposing of a case,

shall alter or review the same except to correct a

clerical or arithmetical error.

26)From a bare perusal of Section 362 of the Cr.P.C. it is quite

vivid that no court has the power to alter or review the

judgment or order disposing of a case finally after signing it

except to correct clerical or arithmetical errors. Ingredients

of this section are (i) the Court has finally disposed of a

case; (ii) the Court has signed the judgment/order; (iii) such

judgment or order cannot be altered or reviewed; and (iv)

only clerical or arithmetical errors can be corrected.

27)The Hon’ble Supreme Court in the matters of Amarnarth 2023:CGHC:23411

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(supra) and Usman Bhai (supra) has categorically held that

granting or refusing of bail applications, summoning

witnesses, adjourning cases, passing orders for bail, calling

for reports etc. are interlocutory orders. Though some of the

High Courts have held that the grant or refusal of a bail

application is the final order, in those cases the above-

stated judgments of the Hon’ble Supreme Court were not

taken into consideration.

28)Further “conditions” alone are neither judgments nor orders

disposing of the case in the eyes of law. The final order in

bail application is its refusal or grant. Conditions are

imposed to bind an accused so he or she may cooperate in

the smooth disposal of criminal case/s pending against him/

her. Section 362 of Cr.P.C. prohibits review or alteration of

final judgment or order but the conditions are neither

judgment nor final order disposing of a case therefore in the

opinion of this Court conditions of bail order can be

modified. For example, if an accused is not capable of

furnishing bail and bonds as directed by the Court then the

same Court modifies the order. Another example is if an

application for a grant of regular bail is rejected on merits

and the accused moves repeat application on the ground of

delay in trial, the same Court grants bail. Thus the practice

of modification of bail orders is not alien to criminal 2023:CGHC:23411

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jurisprudence and the same has been prevalent for a long.

29)Now dealing with the judgments cited by learned counsel for

the respondent.

30)In the matter of Simrikhia (supra), the order passed by the

High Court on an application filed under Section 482 of the

Cr.P.C. was challenged, wherein the order of cognizance

taken by the Magistrate was challenged by the respondents

before the High Court, and in that scenario, the Hon’ble

Supreme Court held that when an order/judgment has been

signed by the Court, such Court cannot alter or review the

same, whereas in the present case, there is no such

situation.

31)In the matter of Smt. Sooraj Devi (supra), an application

moved by Smt. Sooraj Devi for clarification of an earlier

order in a criminal proceeding was dismissed by the High

Court of Allahabad, and the same was challenged before

the Hon’ble Supreme Court, wherein it was held that clerical

or arithmetic errors occasioned by an accidental slip or

omission by the Court can be rectified under Section 362 of

the Cr.P.C.; thus, the facts of the present case are entirely

different from the facts of this case.

32)In the matter of Arun Shankar Shukla (supra), the power of

the High Court under Section 482 of the Cr.P.C. has been

dealt with. The Hon’ble Supreme Court held that where 2023:CGHC:23411

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there is no express provision empowering the High Court to

achieve the said object, powers given under Section 482 of

the Cr.P.C. may be exercised.

33)In the matter of Hari Singh Mann (supra), the petitioner had

filed a petition under Section 482 of the Cr.P.C. before the

High Court of Punjab and Haryana for the registration of FIR

and investigation, the petition was disposed of holding that

no case for the direct registration of FIR is made out and a

preliminary inquiry is required. After the disposal of the

petition, another miscellaneous petition was filed with a

prayer that the JMFC had already taken cognizance, and

that he did not want to prosecute his allegations with the

SSP. The Hon’ble Supreme Court set aside the orders

passed by the High Court holding the orders without

jurisdiction, as there is no provision under Section 362 of the

Cr.P.C. to alter or review the judgment or the final orders. In

the case of Hari Singh Mann (supra), the impugned order

was not an order granting or rejecting bail.

34)In the matter of Sunil Kumar (supra), the petitioner of that

case was convicted by the trial Court, and his appeal was

also dismissed by the High Court. Thereafter, an application

for modification of the said judgment was moved before the

High Court for giving the benefit of the provision of Section

360 of the Cr.P.C., the said application was also dismissed. 2023:CGHC:23411

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In that scenario, the Hon’ble Supreme Court held that once

the judgment or order is passed and signed, the Court

becomes functus officio, and thereafter it cannot be

considered and modified after the dismissal of the appeal by

the High Court; thus, it was observed that the application

filed before the High Court for modification was rightly

dismissed. In the present case, the petition is not against

the conviction; therefore, the facts of the present case are

entirely different from the above discussed matter.

35)In the matter of Aparna Purohit (supra), various judgments

of the Hon’ble Supreme Court have been taken into

consideration while holding that the alteration/review of the

order is not permissible, it is also held that the order granting

bail is a final order; therefore, the provisions of Section 362

of the Cr.P.C. would apply. However, in the matter of Aparna

Purohit (supra), the judgments passed by the Hon’ble

Supreme Court in the matter of Amarnath (supra) and

Usman Bhai Dawoodbhai Menon (supra) have not been

taken into consideration, wherein it is categorically held that

the grant or refusal of a bail application, order summoning

the witnesses, adjournment of the cases are interlocutory

orders. When the order granting or refusing bail is an

interlocutory order, the petition under Section 482 Cr.P.C. for

modification of conditions of bail order would be permissible, 2023:CGHC:23411

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and the provisions of Section 362 of the Cr.P.C. would not

attract.

36)Now dealing with the objection raised by the learned

counsel for the respondent regarding a joint petition filed by

two petitioners when two separate bail applications were

preferred by them. In this regard, it would be worthy to

mention here that both the petitioners are accused in FIR

No. 9/2020. Two bail applications were preferred by them for

the grant of anticipatory bail and both applications were

allowed by a common order. Earlier also joint petition i.e.

Cr.M.P. No. 794/2023 was filed by them. The conditions

imposed upon them are the same, and there is no bar under

the Cr.P.C. in preferring a joint petition against one crime

number therefore in the opinion of this Court, the petition is

maintainable.

37)Now dealing with the last objection of the counsel for

respondent with regard to the maintainability of this petition

as earlier Cr.M.P. No. 794/2023 was dismissed on the

ground that the conditions are just and proper and the same

have been imposed according to the judgment of Hon’ble

Supreme Court rendered in case of Sushila Agrawal v. State

(NCT of Delhi) reported in (2020) 5 SCC 1. But the learned

Counsel for the respondent has lost sight of the phrase “at

this stage” used in the order passed in Cr.M.P. no. 794/2023 2023:CGHC:23411

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dated 13.04.2023. The earlier petition was filed for

modification after two weeks of the order dated 31.03.2023

therefore the same was dismissed at that stage but the

investigation cannot be permitted to continue for an

indefinite period and for that period harsh conditions cannot

be continued.

38)The petitioners seek deletion of conditions which restrict

travelling abroad on the ground that the petitioner No. 1 has

joined the Company which requires frequent visits within the

country and outside the country. It is not in dispute that

travelling abroad is one of the concomitants of the right to

liberty enshrined under Article 21 of the Constitution of India

subject to compliance with relevant laws which regulate

such travel.

39)The undisputed facts are as under:-

(i)On 25.02.2020 FIR NO. 09/2020 was registered against

the petitioners;

(ii)On 28.02.2020 interim protection was granted in favor

of the petitioner No. 1 in W.P.Cr. No. 88/2020 but the

investigation was not stayed;

(iii)On 10.01.2022 W.P.Cr. Nos. 88/2020 and 154/2020

were allowed by the Coordinate Bench of this Court and

the FIR was quashed;

(iv)On 01.03.2023 the Hon’ble Supreme Court allowed the 2023:CGHC:23411

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SLPs preferred by the State Of Chhattisgarh and the

complainant and set aside the order passed by the High

Court and granted three weeks to the petitioners to

approach the competent Court;

(v)On 31.03.2023 the anticipatory bail applications

preferred by petitioners were allowed.

(vi)On 13.04.2023 Cr.M.P. preferred by the petitioners was

dismissed at that stage.

40)From above above-stated facts, it is quite vivid that an

investigation has been pending against the petitioners since

25.02.2020 even while granting interim protection by the

Coordinate Bench, the investigation was not stayed and the

FIR was quashed on 10.01.2022 meaning thereby two years

was available to the Investigating Agency prior to the

quashament of FIR for completion of the investigation.

Thereafter, the petitioners were granted anticipatory bail on

31.03.2023 and this petition for modification was filed on

07.08.2023 and this period was also available to the

Investigating Agency to complete the Investigation. Learned

Counsel for the respondent, at this point, would fairly submit

that the investigation would take more time.

41) From the above discussion, it is apparent that despite

sufficient time investigation has not been completed; the

conditions cannot be permitted to continue for an indefinite 2023:CGHC:23411

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period; the conditions of the bail order can be modified in a

petition filed under Section 482 of Cr.P.C. and Section 362

of Cr.P.C. would not attract; joint petition for modification

may be filed if the FIR arises from one crime number and a

common order has been passed; travelling abroad or free

movement is one of the rights enshrined under Article 21 of

the Constitution of India; the petitioner No. 1 has to move

abroad for his livelihood; petitioner no 2 is a lady and both

are staying at Ahmedabad in a rented house and they are

facing ordeal since January 2020.

42) Therefore, this Court by invoking its powers under Section

482 of the Cr.P.C., is inclined to modify conditions No. 1, 5, 6

and 7 as under:-

(i) Condition No. 1 which requires the presence of both the

petitioners before the police station concerned on the 4th of

every month till the trial is over is hereby diluted but the

petitioners shall cooperate with the investigating agency;

(ii) Condition No. 5 of the bail order which says that the

petitioners shall not leave the territory of India without the

leave of the Court is modified to the extent that petitioners

shall file a written undertaking before the Trial Court

disclosing the date of departure and return of foreign trip

and shall inform the Trial Court after return either in person

or through their counsel; 2023:CGHC:23411

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(iii) Condition No. 6 is modified up to the extent that

petitioners would be at liberty to change their residential

address but they shall inform their changed residential

address to the Investigating Agency, whereas the rest of the

conditions of condition no. 6 shall remain intact; and

(iv) Condition No. 7 whereby petitioners were directed to

surrender their passports is hereby diluted. The

Investigating Agency is directed to return the passports of

the petitioners after retaining their Xerox copies.

43) A copy of this order be sent to the Investigating Agency and

the Trial Court for information and compliance.

Sd/-

(Rakesh Mohan Pandey)

Judge

Nadim 2023:CGHC:23411

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