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Preliminary objection questioning the petition rejected because of no legality in the raised contentions – Manipur high court

Preliminary objection questioning the petition rejected because of no legality in the raised contentions – Manipur high court

Preliminary objection raised questioning the maintainability of the petition was dismissed by the single bench of HON’BLE MR. JUSTICE AHANTHEM BIMOL SINGH in the case of Laishram Suresh and Ors. Versus The state of Manipur

The learned public prosecutor appearing on behalf of the respondents submitted that the present petition had been filed under Section 482 and 439 of the Cr. P.C and that inherent power of this Court under Section 482 Cr.P.C. and Section 439 Cr.P.C. are different and such power cannot be exercised concurrently. the petitioners can file the present petition either under Section 482 Cr. P.C or under Section 439 Cr.P.C. and not under both the said two Sections. it is further submitted that the present petition cannot be filed under Section 439 of the Cr.P.C. because the special powers of the High Court or Court of Sessions to grant bail to any person accused of an offense as provided under Section 439 (1) (a) of the Cr.P.C. can be exercised only with the said accused is in custody. In the present case, the petitioners are not in custody, and accordingly, they cannot avail of the remedy provided under Section 439 (1) (a) and as such the present petition cannot be filed under Section 439 Cr.P.C.  the petitioners are placed under custody in terms of the impugned order, they can avail the remedy of regular bail as provided under Section 439 of the Cr.P.C. and accordingly, it has been submitted that the present petition under Section 482 is not maintainable.

The next point raised is that invoking the provision of Section 482 of Cr. P.C for quashing and setting aside judicial proceedings as defined in Section 2(i) of Cr.P.C., it is mandatory for the petitioners to implead the original complainant as quashing of such criminal proceedings without notice to the original complainant has been held as unsustainable by the Hon’ble Apex Court in the case of “Mosiruddin Munshi Vs. Md. Siraj & Ors.” reported in (2008) SCC 434 hence the present petition is not maintainable.

The learned counsel appearing on behalf of the petitioners submits that the learned JMFC, IW-I released the petitioners on bail after careful consideration of all the material facts and circumstances of the Criminal Trial pending before the learned Magistrate and within the scope and parameters of the provisions provided under Section 437 (6) of the Cr.P.C. It is further submitted that as the present petitioners are not in custody at the time of filing the present Criminal Petition, the present petition can be entertained under Section 482 Cr.P.C. and not under Section 439 (1) Cr.P.C. The learned counsel further submitted that as the petitioners are not in custody, there is no question of filing any application for granting regular bail and that the contentions of the counsel for the respondent that the petitioners have an alternative remedy for availing regular bail is without any basis and not sustainable. The learned counsel further submitted that it is not mandatory and necessary to enclose the pleadings of the parties while challenging the legality and perversity of the impugned order and as such, there is no substance in the contention advanced by the counsel for the respondent that the present petition is liable to be rejected for not enclosing a copy of the application filed by the present petitioners before the learned Judicial Magistrate.

The court hearing both the sides decided that the submission advanced by the counsel for the petitioners have force and merit and this Court is in complete agreement with such submissions and that the preliminary objection raised by the respondent about the maintainability of the present petition has no substance of force and accordingly, such preliminary objection is hereby rejected.

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Judgment reviewed by Naveen sharma

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