Read Time: 07 minutes

Synopsis

The Supreme Court has said that Section 362 of the Criminal Procedure Code, putting a bar on a court to modify its order save and except clerical or arithmetical mistakes, is not applicable in a case of filing of a fresh bail application under the changed circumstances.

A bench of Justices Aniruddha Bose and Bela M Trivedi said that an order for refusal of bail 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," the bench said.

Section 362 CrPC states that save as otherwise provided by the 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.

The court allowed an appeal by one Ramadhar Sahu against the Madhya Pradesh High Court's order refusing to entertain a fresh bail application filed by him, citing Section 362, CrPC.

The appellant was in a pre-trial custody in a case of lifting cash through the ATM cards which were meant to have been issued to the account holders of the bank. Allegations has been made for commission of offences, inter-alia, under Sections 420, 467, 468, 471, 408, 201 and 120B of the IPC and Sections 66 & 66-C of the Information Technology Act. Certain other accused persons had also been implicated in the same crime.  

The high court allowed him bail by an order on April Court on 28, 2022 as he had volunteered to deposit a sum of Rs 65,92,460. He was to deposit Rs 10,00,000 before the trial court and Rs 55,92,460 was to be deposited under protest within a period of three months.

The amount of embezzlement was Rs 1.44 Cr. On failure to deposit the sum, he surrendered on July 24, 2023.

The appellant subsequently filed a fresh application relying upon the top court's order releasing a similarly situated co-accused.

He sought parity with the co-accused. The high court, however, rejected his plea.

"The opinion of the High Court, in the impugned order, is that in the event the High Court granted bail to the appellant without compliance of the conditions specified in the earlier order of a Coordinate Bench, that would constitute modification of the order and Section 362 of the Code prohibits such modification of a judgment or final order," the bench said.

The court set aside the high court's order and remitted the matter back to it for examination afresh, saying, "We do not think the reasoning on which the impugned order was passed rejecting the appellant’s application of bail can be sustained".

Case Title: RAMADHAR SAHU vs. THE STATE OF MADHYA PRADESH