P.S.MISRA, C.J. - (1.) Could in exercise or revisional power under Section 397 of the Code of Criminal Procedure, a single Judge of the Court interfere with the order of the Chief Judge, City Sessions Court at Calcutta who acted in obedience to the direction of a Division Bench of the Court and decided afresh the application of the opposite party for bail in a case allegedly falling under Section 35 of the Foreign Exchange Regulation Act, 1973 on the accusation of contravention of the provision of Sections 8(1), 9(1) (b), 9(l)(d), 16(l)(a)(b), 18(2) and 18(3) read with Section 68 of the said Act ?
(2.) The fact of the matter lies in a very narrow compass. The opposite party was arrested on 25-5-1996 for the aforementioned offences allegedly committed by him involving about Rs.53 crores during the period March to October, 1995. He was remanded to custody by the Chief Metropolitan Magistrate, Calcutta by the order dated 26th May, 1996. He filed an application for bail in terms of subsection (1) of Section 439 of the Code of Criminal Procedure before the Chief Judge, City Sessions Court at Calcutta being Criminal Misc. Case No.573 of 1996. On 30-5-1996, the Chief Judge, City Sessions Court, ordered for the release of the opposite party. The petitioner filed an application under Section 439(2) of the Code of Criminal Procedure before this Court seeking direction that the opposite party who had been released on bail be arrested and committed to custody. The Division Bench of the Court which heard the application delivered a detailed judgment and order as follows: "Accordingly, we set aside the order of bail dated 30-5-1996, directing the learned City Sessions Judge to hear the matter afresh within 10 days or earlier than that if not inconvenient after notice to the parties. We do not make any inflated or deflated remarks about the merit of the matter and it is left open for the learned City Sessions Judge for adjudication. However, considering the circumstances, we also direct that the investigating agency is to refrain from re-arresting the accused until decision rendered by the learned City Sessions Judge within the period stipulated by us but the accused-petitioner is not to leave the jurisdiction of the Court. It appears, however, although the order granting bail to the opposite party was set aside by the above order of the Division Bench of the Court, the petitioner filed an application before the City Sessions Judge for cancellation of bail to the opposite party. The City Sessions Judge disposed of the matter as directed by the Division Bench of the Court and the application for cancellation of bail holding inter alia, as follows: "In this case I find that the petitioner is involved in a scam to the tune of Rs.50 crores. It is true that the punishment as codified, does not fluctuate with the amount involved but it cannot be denied that the said amount involved in this case is definitely a high one, rather sky scrapping as stated by me earlier. This gravity of the offence, being influenced by the medical ground, as discussed above, has not been properly given consideration by this Court. And having been given the opportunity by the Hon'ble High Court to reconsider the same, I am of the opinion that the said amount is too high to give facility to the petitioner to the privileges of bail. Therefore, on consideration of the circumstances, the bail order which has already been set aside by the Hon'ble High Court is not being revived and the same is being cancelled." The opposite party, however, moved this Court and labelled his application as one under Section 397/401 of the Code of Criminal Procedure read with Section 482. Thereafter the application was placed before a single Judge of this Court. Although it was urged before him that the impugned order of the City Sessions Judge was interlocutory and the revisional application was not maintainable, the learned single Judge set aside the order of the City Sessions Judge and directed for grant of bail to the opposite party.
(3.) A fresh application under Section 439(2) has been filed. When the said application was placed before a bench of two Judges of this Court, they referred the matter to the Chief Justice to constitute a larger Bench in the interest of justice and the interpretation of law for a decision on the following questions: (1) Whether a single Bench could exercise revisional power under Section 397/401 of the Code of Criminal Procedure to consider bail when offences alleged to have been committed under the Foreign Exchange Requisition Act, 1973 and/ or such matters which fall under Rule 9 of the Rules of the High Court ? (2) Whether the Court of revision, independent of Section 439 of the Code of Criminal Procedure could decide the matter; (3) Whether the use of Auxilliary verb 'shall' in the aforementioned rule has made the rule mandatory and the proceedings accordingly must always be entertained by the Division Bench of the single Judge, as the case may be and departure in no case, is permissible; and (4) Whether there is a need to re-examine and if necessary, to amend the said rule to meet the exigencies ?;