A Division Bench of the Supreme Court set aside the judgement of the Madhya Pradesh High Court.
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. 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.
While, setting aside the judgment of the Madhya Pradesh High Court, held that Section 362 of the Code of Criminal Code Procedure, 1973, which prohibits the modification of a judgement or final order, will not be applicable 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.
“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 the prayer for bail does not disempower the Court from considering such a 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 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 including 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 of identity theft) of Information Technology Act.
On April 28 2022, the High Court 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 he failed to make such deposits.
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. After the High Court, this case was passed to the Supreme Court for better judgement and clarification.
The Supreme Court, while hearing the present appeal categorically held 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 considering these observations.