1993 ALLMR ONLINE 479
M.F. SALDHANHA, J.
SUAN KHER GUALAN Vs. ASSISTANT COLLECTOR OF CUSTOMS, PROSECUTION CELL
Bail Appln. No. 1207 of 1993
23rd April, 1993
Petitioner Counsel: M. M. Patel
Respondent Counsel: M. K. Patwardhan, Smt. S. S. Keluskar
Criminal P.C. (1973),S. 439
JUDGMENT :- A controversy has been projected by learned counsel in this case, who has within a very short time re-applied to this Court for reconsideration of the quantum of bail granted by the learned Chief Metropolitan Magistrate at Bombay. The four applicants, who are students, were arrested on 19-2-1993 by the Airport Police on charges of having been found in possession of gold worth approximately Rs. 16,00,000/- to Rs. 18,00,000/- each. Accused Nos. 1, 3 and 4, who are Indian Nationals and students studying in Pune were granted bail in the sum of Rs. 2,00,000/- and cash deposit of Rs. 1,00,000/-; whereas Accused No. 2, who is from Surms was granted bail of Rs. 3,00,000/- with surety and in the alternative Rs. 2,00,000/- cash deposit. The applicants approached the High Court for reduction of the bail amount, but this Court declined to interfere with the order dated 8-4-1993 and granted liberty to the applicants to re-apply to the trial Court. On 16-4-1993, they filed an application before the trial Court which came to be rejected relying, principally, on the judgment in Criminal Application No. 2144 of 1986. There is an observation that the power for reducing the bail amount is vested in the superior Court only. Apart from this, the learned Magistrate has also indicated that it was essential not to reduce the bail amount in order to avoid the accused absconding.
2. Since learned counsel on both sides have pointed out that the view prevalent before the trial Court is that the Magistrates do not have the power to reconsider at a later point of time an application for reduction of bail, it is necessary to set out the correct position in law. While it is true that the subordinate Courts do not possess inherent powers, it is equally necessary to record that they do have the jurisdiction in the circumstances that are, set out below to reconsider the question because it is effectively a de novo application for bail since the applicant is in custody.
3. An application was filed before this Court which was heard on 8-4-1993 for modification of the bail order granted by the trial Court. I was not inclined to interfere with that order, but I granted liberty to the applicants to re-apply to the trial Court "after some time". The application was withdrawn. Thereafter, an application was immediately moved before the trial Court on 16-4-1993, which the learned Magistrate rejected on 19-4-1993. Unfortunately, in spite of specific directions contained in the earlier order dated 8-4-1993, whereby the petitioners were granted liberty to move the trial Court once again for reconsideration, the learned Magistrate has defiantly rejected the application on the ground that, according to him, he has no power to reconsider his earlier order. This position is wholly incorrect in law and in cases where an order is an interlocutory order, circumstances would certainly exist and arise whereunder an applicant is entitled to request the Court for reconsideration. It is certainly in order for a Court to point out that once an application has been rejected unless there are new or compelling grounds, that a party ought not to re-apply within a very short span of time.
4. Shri Patwardhan and Shri Patel pointed out to me that the judgment of my brother D. N. Mehta. J. (as he then was) in Criminal Application No. 2144 of 1986, Mukund Iron and Steel Works vs. Shri Kumar Sharma contains certain observations which construed to mean that under no circumstances can the trial Court or the learned Magistrate for that matter can reconsider the question of reduction of bail amount. I have gone through the judgment in question and it will be pertinent to point out that it was a passing observation made on the facts of that case. The position in law is quite clear that if valid ground is shown, the question can certainly be reconsidered.
5. In this case, the applicants are facing a serious charge under the provisions of the Customs Act. They are students and it is alleged that each of them was caught with gold valued at around Rs. 18,00,000/- to Rs. 16,00,000/-. It is argued that they are students, that one of them is a foreigner and that in these circumstances the Court must grant them an affordable bail so that they do not languish in custody. The bail order in question was of Rs. 4,00,000/- with surety and in the alternative cash bail of Rs. 3,00,000/- each with the usual conditions. Undoubtedly, the learned trial Magistrate took into consideration all relevant aspects of the case, including the fact that the accused are students, etc. and, therefore, did not reject it. At the same time, the learned Magistrate has borne in mind that the value of the contraband involved had to be taken into consideration.
6. The bail amount is, undoubtedly, of a high quantum and Shri Patel, learned counsel for the applicants, pointed out that it is beyond the means of the applicants and that, therefore, they are unable to avail of it. It was on that ground that the earlier application was made to this Court for reduction of the amount. It is true that in many of the cases where the accused continues to remain in custody because he cannot avail of the bail order that at a subsequent point of time the trial Court or the High Court brings the amount down to make it more affordable. This does not, however, mean that within the short term, i.e., after hardly any time has elapsed that the accused should be permitted to make multiple applications. It is equally the duty of the accused to try and avail of the bail order and to make efforts in that direction and if all such efforts have failed, it is open to the accused to point out to the Court the difficulty and request the Court for a review or reconsideration. The time-factor, to my mind, really is a barometer.
7. The issue at heart really is the question as to whether the reconsideration of the quantum is something that the trial Court itself can review. The immediate impression is created that the observations of my brother Mehta, J. (as he then was) in the case referred to supra proceed on the footing that, reconsideration of the quantum of bail would amount to a review by the subordinate Court of its own order, which is not ordinarily permissible, and that, therefore, the only remedy is to approach a superior Court. There is no dispute about the jurisdiction of the superior Court in exercise of its powers of revision, appeal, inherent powers, etc., to modify the order. The short question is as to whether reconsideration of a bail order on the question of quantum is permissible or not.
8. An application for reconsideration of the quantum is basically on par with a fresh application for bail. Where the accused has been unable to avail of the earlier bail order, he is in custody and the change of circumstances due to the lapse of time are factors on which the Court must and can consider the release of the accused de novo, but where the offence is serious, such as in the present case, and the complaint has not yet been filed, the grant of bail at the early stage is virtually a concession. The Court cannot overlook the fact that there can be and there are instances where an accused feigns inability in order to get the sympathy of the Court and thereby benefit. The genuineness of the inability can best be demonstrated in cases where the accused does not, in fact, go out on bail within a reasonable period. It is for this reason that multiple bail applications in quick succession ought not to be permitted, but a review after reasonable time is certainly justified.
9. As indicated earlier, it is not a review of one's own order that is being done because with the passage of time at least some of the factors have changed and the accused being in custody, it is virtually a de now consideration. Under . these circumstances, it is certainly open to an accused to re-approach the trial Court and apply afresh.
10. As far as the present application is concerned, having heard learned counsel, I am not inclined to interfere with the original order of bail or the conditions thereof at this stage. If there is any change of circumstances, or lapse of time, etc., it is open to the parties to re-apply to the trial Court or to this Court. Application rejected.