Section 362 CrPC Bar Not Applicable To Bail Orders : Supreme Court

A Division Bench of the Supreme Court recently, while setting aside the judgment of the Madhya Pradesh High Court, held that Section 362 of the Code of Criminal Procedure, 1973, which prohibits modification of a judgment or final order, will not be applicable in an order for refusal of bail. The rationale given by the Court was that such an order has the characteristics of an interlocutory order. Thus, any variation of the circumstances under which the bail was rejected will entitle the accused to file a fresh application for bail, and the prohibition under Section 362 will not be applicable. Similarly, the Court opined that conditions of bail could also be varied if a case is made out for such variation.

“An order for refusal of bail, however, inherently carries certain characteristics of an interlocutory order in that certain variation or alteration in the context in which a bail plea is dismissed confers on the detained accused right to file a fresh application for bail on certain changed circumstances.Thus, an order rejecting prayer for bail does not disempower the Court from considering such plea afresh if there is any alteration of the circumstances. Conditions of bail could also be varied if a case is made out for such variation based on that factor. Prohibition contemplated in Section 362 of the Code would not apply in such cases,” held a bench of Justices Aniruddha Bose and Bela M. Trivedi.

In the matter at hand, the appellant, along with other accused persons, was indicted for embezzling cash through the ATM cards that were meant to have been issued to the account holders of the bank. Inter-alia, the appellant was charged under Sections 420 (Cheating and dishonestly inducing delivery of property, 467 (Forgery of valuable security), 468(Forgery for the purpose of cheating) of the Indian Penal Code and Sections 66 (Computer related offences) & 66­C (Punishment for identity theft) of Information Technology Act.

The High Court, on April 28, 2022, allowed the appellant's prayer for bail. However, having failed to deposit a certain amount within a period of three months from the date of his release, which was one of the bail conditions, he surrendered on July 24, 2023. Pursuant to this, he applied for bail again before the High Court through a fresh application on the grounds of parity. He referred to a case of his co-­accused who was similarly released on bail by the High Court on his willingness to deposit a certain sum of money however, later on failed to make such a deposit.

Notwithstanding the same, the High Court, in its impugned order, refused to grant bail to the appellant, citing the reason that granting bail would constitute a modification of the order and Section 362 of the Code. Thus, the present appeal.

The Supreme Court, while hearing the present appeal, categorically held that the prohibition contemplated in Section 362 of the Code would not apply in such cases. Thus, the Court, while finding the impugned order to be unstainable, remitted the same to the High Court and directed that the same shall be decided afresh in light of these observations.

Case Title: RAMADHAR SAHU v. THE STATE OF MADHYA PRADESH., (Arising from SLP(Crl.) No(s).11130/2023

Citation : 2023 LiveLaw (SC) 945

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