CRL.M.A. 12579/2021 in BAIL APPLN. 112/2021; &

CRL.M.A. 12816/2021 in BAIL APPLN. 122/2021

1. These application(s) are filed under Section 482 Cr.P.C. to recall the observations made in paras no.19and 20 of the order dated 30.07.2021 and/or to clarify the same, as such observations are prone to be misconstrued and may result in a miscarriage of justice being contrary to several judgments rendered by the Co-ordinate Bench of this Court, clearly laying down the ratio decideni that neither have the twin conditions for bail under Section 45 of PMLA revived after having been declared as unconstitutional by the Supreme Court in Nikesh Tarachand Shah vs. Union of India & Anr. (2018) 11 SCC 1 [LQ/SC/2017/1718] .

2. The learned senior counsel for the petitioner says it is an application not for recalling of the order but of observations made in para nos.19 and 20 of the bail order

3. Paras 19 and 20 of the order dated 30.07.2021 passed in BAIL APPLN.112/2021 and BAIL APPLN.122/2021 are as under:

"19. Therefore, merely because the entire section is not re-enacted would be of no consequence since the provision even after being declared unconstitutional, does not get repealed or wiped out from the statute book and it only becomes unenforceable. Therefore, once the Parliament steps in and cures the defect pointed out by a Constitutional Court, the defect appears to be cured and the presumption of constitutionality is to apply to such provision.

20. Thus, there is a presumption in favour of constitutionality since the amended section 45(1) of the PMLA has not been struck down, (see) Nagaland Senior Govt. Employees Welfare Assn. v. State of Nagaland (2010) 7 SCC 643 [LQ/SC/2010/627] .”

4. Before the start of the arguments, the learned ASG appears and submit this Court has become functus officio after rendering the judgment in the bail application and hence the bar of Section 362 Cr.P.C would operate. Section 362 Cr.P.C. is as under:

“362. Court not to after judgment. 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.”

5. The learned senior counsel for the petitioner submits Section 362 Cr.P.C. starts from Save as otherwise provided by this Code and it applies to judgment and final order and whereas Section 482 Cr.P.C. starts from Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code…… It is argued there is no parallel provision to Section 482 Cr.P.C. and secondly Section 362 Cr.P.C. shall not limit the civil powers existed in Section 482 Cr.P.C. It is argued bail order is not a final order but an interlocutory one and the petitioner is seeking only recalling of the observations in the order.

6. The learned counsel for petitioner relied upon New India Assurance Co. Ltd. vs. Krishna Kumar Pandey 2019 SCC Online SC 17116 wherein it was held:

45. But the above contention of the learned Senior Counsel for the respondent is fallacious for two reasons. The first is that Section 362 of the Code is expressly subjected to "what is otherwise provided by the Code or by any other law for the time being in force. " Though this Court pointed out in Davinder Pal Singh (supra) that the exceptions carved out in Section 362 of the Code would apply only to those provisions where the Court has been expressly authorized either by the Code or by any other law but not to the inherent power of the Court, this Court nevertheless held that the inherent power of the Court under Section 482 Cr.P.C. is saved, where an order has been passed by the criminal Court, which is required to be set aside to secure the ends of justice, or where the proceeding amounts to abuse of the process of Court. In paragraph 46 in particular, this Court held in Davinder Pal Singh as follows:

"46. If a Judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 Cr.P.C. would not operate. In such an eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault.”

7. And Usman Bhai Daud Bhai Memon vs. State of Gujarat, AIR 1988 SC 922 [LQ/SC/1988/171] wherein the Court held it cannot be doubted that the grant or refusal of a bail application is essentially an interlocutory order.

8. Heard.

9. At the outset I may say the order dated 30.07.2021 does not require any clarification as the analogy of para No.19 and 20 flows from paras 14 to 18 of the said order.

10. Even otherwise, the reliance placed by the applicant/petitioner on the decisions of the Hon’ble Supreme Court in cases of New India Assurance Co. Ltd. vs. Krishna Kumar Pandey, 2019 SCC OnLine SC 1786 as well as State of Punjab vs. Davinder Pal Singh Bhullar (2011) 14 SCC 770 [LQ/SC/2011/1534] is to state that inherent powers of the Court u/s 482 of Cr.P.C. are saved by Section 362 of Cr.P.C. but in New India Assurance Co. Ltd. (supra) the petitioner was ex parte/not heard and Davinder Pal Singh Bhullar (supra) rather carved out certain exceptions to the operation of the bar under Section 362 Cr.P.C, as under:

"i. If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice; or

ii. Where the order has been pronounced without giving an opportunity of being heard to a party affected by it; or

iii. Where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction"

The above exceptions, in no way apply to the facts of the present case and hence the present application is not maintainable in light of the express bar under Section 362 of the Cr.P.C.

11. I may rather refer to Abdul Basit alias Raju & Ors. vs. Mohd. Abdul Kadir Chaudhary & Anr. (2014) 10 SCC 754 [LQ/SC/2014/971] wherein the Court held:

“26. In the instant case, the order for bail in the bail application preferred by the accused-Petitioners herein finally disposes of the issue in consideration and grants relief of bail to the applicants therein. Since, no express provision for review of order granting bail exists under the Code, the High Court becomes functus officio and Section 362 of the Code applies herein barring the review of judgment and order of the Court granting bail to the accused-Petitioners. Even though the cancellation of bail rides on the satisfaction and discretion of the Court Under Section 439(2) of the Code, it does not vest the power of review in the Court which granted bail. Even in the light of fact of misrepresentation by the accusedPetitioners during the grant of bail, the High Court could not have entertained the Respondent/informant's prayer by sitting in review of its judgment by entertaining miscellaneous petition.”

12. In view of above, both the applications are dismissed. Pending application, if any, also stands disposed of.