# Mohit Kumar Goyal Revisionist v. State of U.P. & Anr

- **Citation:** (2023) 9 ILRA 667
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-22
- **Case number:** Criminal Revision No. 301 of 2023
- **Bench:** Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohit-kumar-goyal-revisionist-v-state-of-u-p-anr-50728
- **Pages:** 13

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
revision - Indian Penal Code, 1860 -
Sections 406, 420, 467, 468, 471 & 120-B
- Constitution of India - Article 21- orders
summoning witnesses, adjourning cases,
passing orders for bail, calling for reports
and such other steps in aid of the pending
proceeding, may no doubt amount to
interlocutory orders against which no
revision would lie under Section 397 (2) of
the Code of Criminal Procedure.(Para -
30,31)

Transit Anticipatory Bail - Accused in custody -
no bail application made - Magistrate accepted
remand
application
-
accepted
accused's
remand - accused should be summoned to Tihar
Jail - taking warrant "B" under Section 167
Cr.P.C. - accused directly/indirectly in custody
of court - accused cannot be given benefit of
anticipatory bail. (Para -17)

HELD:-No illegality or infirmity in the impugned
order passed by the concerned Magistrate.
Anticipatory bail on behalf of a person who is
already in custody with the Police or is already
in jail in another criminal case would not lie and
would be nothing but travesty of justice in
allowing the anticipatory bail to such an
accused.
Criminal
revision
against
an
interlocutory/interim
order
like
the
order
impugned is not maintainable. (Para -27,32)

Criminal Revision dismissed. (E-7)

List of Cases cited:

## Text

_Characters 0–39,983 of 42,822. This is a partial read: ask again with offset=39983 for what follows._

9 All. Mohit Kumar Goyal Vs. State of U.P. & Anr.
667
----------
(2023) 9 ILRA 667
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.08.2023

BEFORE

THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Revision No. 301 of 2023

Mohit Kumar Goyal ...Revisionist
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionist:
Sri Prashant Vyas, Ms. Kanchan Sharma, Sri
Nitin Kumar Agrawal

Counsel for the Respondents:
G.A., Sri Saumitra Dwivedi, Sri Pradeep
Kumar Mishra, Sri Vinay Saran (Sr. Adv.)

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
revision - Indian Penal Code, 1860 -
Sections 406, 420, 467, 468, 471 & 120-B
- Constitution of India - Article 21- orders
summoning witnesses, adjourning cases,
passing orders for bail, calling for reports
and such other steps in aid of the pending
proceeding, may no doubt amount to
interlocutory orders against which no
revision would lie under Section 397 (2) of
the Code of Criminal Procedure.(Para -
30,31)

Transit Anticipatory Bail - Accused in custody -
no bail application made - Magistrate accepted
remand
application
-
accepted
accused's
remand - accused should be summoned to Tihar
Jail - taking warrant "B" under Section 167
Cr.P.C. - accused directly/indirectly in custody
of court - accused cannot be given benefit of
anticipatory bail. (Para -17)

HELD:-No illegality or infirmity in the impugned
order passed by the concerned Magistrate.
Anticipatory bail on behalf of a person who is
already in custody with the Police or is already
in jail in another criminal case would not lie and
would be nothing but travesty of justice in
allowing the anticipatory bail to such an
accused.
Criminal
revision
against
an
interlocutory/interim
order
like
the
order
impugned is not maintainable. (Para -27,32)

Criminal Revision dismissed. (E-7)

List of Cases cited:

1. Amit Kapoor Vs Ramesh Chander & anr. ,
(2012) 9 SCC 460

2. Narinderjit Singh Sahni & anr. Vs U.O.I. ,
(2002) 2 SCC 210

3. Amar Nath & ors. Vs St. of Har. & ors. ,
1977 0 AIR (SC) 2185

4. Honnaiah T.H. Vs St. of Karn. & ors. , 2022
SCC OnLine SC 1001

(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

1. Heard Sri Nitin Kumar Agarwal,
Advocate holding the brief of Ms. Kanchan
Sharma, Advocate, Sri Prashant Vyas,
learned counsel for the revisionist, Sri
Vinay Saran, learned Senior Counsel
assisted by Sri Pradeep Kumar Mishra,
learned counsel for the opposite party no. 2
and Mr. Ratnesh Nandan Singh, learned
A.G.A.-I for the State.

2. By means of the present criminal
revision, the revisionist is challenging the
order dated 03.11.2022 passed by Second
Additional
Chief
Judicial
Magistrate,
Gautam Budh Nagar in Case Crime No.
106 of 2021, under Sections 406, 420, 467,
468, 471 & 120-B I.P.C., Police Station
Surajpur, District Gautam Budh Nagar,
whereby
the
learned
Magistrate
has
accepted the remand and issued "B"
warrant as also directed the accusedrevisionist to appear in jail.
668 INDIAN LAW REPORTS ALLAHABAD SERIES

FACTS AS CROPPED UP FROM
THE RECORDS

3. A first information report has
been lodged by the informant, namely,
Devendra Bansal on 09.02.2021 at 0634
hrs. against the revisionist and 5 others,
which was registered as Case Crime No0106 of 2021, under Sections 420, 467,
468, 471, 406 & 120-B IPC, Police
Station-
Surajpur,
District-Central
Commissionerate Gautam Budh Nagar
for the alleged incident in which no date
and time of the incident were .M.
4thmentioned. In the first information
report, it has been alleged that the
revisionist, his wife Dharna Garg in
collusion with four others have taken
total Rs. 1.96 crores from the informant
and his wife for business by making a
forged company and they have not
returned the same to the informant and
cheated them also.

4. The revisionist is also accused in
FIR No. 838 of 2021, Police Station-Noida
Sector-58, dated 20th September, 2021.
Both the aforesaid cases have been
investigated by Special Investigating Team
(SIT)
headed
by
Inspector
Ravinder
Gautam.

5. In Case Crime No. 0106 of 2021
dated 9th February, 2021, under Sections
420, 467, 468, 471, 406 & 120-B IPC,
Police Station- Surajpur, District-Central
Commissionerate Gautam Budh Nagar, the
revisionist has moved an application under
Section 438 Cr.P.C. (Transit Anticipatory
Bail) before the Rohini Courts, Delhi,
which has been granted vide order dated
2nd November, 2022, a copy of which has
been enclosed as Annexure-8 to the
affidavit
accompanying
the
present
criminal revision.

6. On 3rd November, 2022, the
revisionist
was
produced
before
the
Additional Chief Judicial Magistrate-II,
Gautam Budh Nagar whereby his oral
prayer that since he has already been
granted transit anticipatory bail by the
Additional Sessions Judge, Rohini Court,
Delhi for a period of eight days, he may be
granted some protection from that Court for
the said period, has been rejected the
concerned Magistrate after observing that
the Rohini Court in granting transit
anticipatory bail to the revisionist has no
jurisdiction. It is against this order that the
present revision has been filed.

7. It is pertinent to mention here that
the revisionist had approached the Hon'ble
Apex Court by filing Writ Petition (Crl)
No. 505 of 2022 (Mohit Kumar Goyal vs.
State of U.P. and others), where he had
challenged the order dated 03.11.2022 and
the Apex Court had directed to avail the
remedies in accordance with law.

CASE OF THE REVISIONIST

8. The revisionist Mohit Kumar
Goyal is Ex-Director of M/s. Family of Dry
Fruits India Private Limited, having its
office at U-25/A, DLF Phase-3, Near Pink
Town, House Market, Sector-24, Gurugram
(Haryana). The revisionist had never
formed the company namely M/s. R.D. Dry
Fruits Pvt. Ltd. and M/s. Seth Ji Dry Fruits
Pvt. Ltd. The revisionist is not the
director/share
holder/beneficiary
or
signatory in M/s. R.D. Dry Fruits Pvt. Ltd.
and M/s. Seth Ji Dry Fruits Pvt. Ltd. The
revisionist' company and Shree Shyam
Trading Company are distinct company and
Proprietor of Shree Shyam Trading Co. is
nowhere concerned with the affairs of M/s.
Family of Dry Fruits India Pvt. Ltd. The
revisionist had not transferred any fund in
9 All. Mohit Kumar Goyal Vs. State of U.P. & Anr.
669
their own personal account nor the single
amount had been transferred in the account
of M/s. Family of Dry Fruits India Pvt. Ltd.
by the informant. It is merely an allegation
that he had transferred the same. The real
fact is that the revisionist is being cheated
by the informant, regarding which a first
information report of Case Crime No. 1851
of 2019, under Sections 406, 420, 467, 468,
471, 384, 388, 389, 504, 506 & 120-B IPC,
Police Station-Surajpur, District-Gautam
Budh Nagar was lodged against the
informant and others, but no action had
been taken by the police nor the statement
of the revisionist is recorded till date. The
intention of the informant can be seen that
when he was not able to achieve his illegal
goals then he lodged the present first
information report after the delay of about
1 year and 7 months, for which no plausible
explanation was given by the respondent.
The office of the M/s. Family of Dry Fruits
India Pvt. Ltd. is situated at Noida and
Ghaziabad.

9.

SUBMISSION
OF
THE
LEARNED
COUNSEL
FOR
THE
REVISIONIST

(I) In the first information report
being Case Crime No. 106 of 2021, not
even a single word has been mentioned that
the supply was made at Noida. When as a
matter of fact all the supplies was made in
Gurugram/Gurgaon. As such the U.P.
Police has no jurisdiction to lodge the
present first information report at Noida.

(II) The revisionist had filed a
case
against
the
informant
namely
Devendra Bansal, which was registered as
Case Crime No. 1851 of 2019, under
Sections 406, 420, 467, 468, 471, 384, 388,
389, 504, 506 & 120-B IPC, Police StationSurajpur, District-Gautam Budh Nagar.
The said first information report was
registered in compliance of the order of the
learned Civil Judge (S.D.) FTC, Gautam
Budh Nagar passed in the application u/s.
156(3) Cr.PC. The informant is being
arrayed as accused no.9 in the first
information report of Case Crime No. 1851
of 2019, under Sections 406, 420, 467, 468,
471, 384, 388, 389, 504, 506 & 120-B IPC,
Police Station-Surajpur, District-Gautam
Budh Nagar. He had taken the advantage of
the dispute between M/s. Family of Dry
Fruits and M/s. Shree Shyam Trading
Company. The informant in order to gain
illegal benefits had made Aadhar Card and
Driving License in the name of Pradeep
Singh Nirwan, which are the forged one.
The informant was arrested by the police,
but was released on same date on the basis
of his ill-health. The revisionist had
approached the S.S.P., Gautam Budh
Nagar, who had assured that the informant
will be arrested soon, but he was not
arrested. In fact, he was released by the
Investigating Officer. On 18.03.2020 a
complaint was made by the revisionist
before the ACJM-II, Gautam Budh Nagar
bearing Complaint Case No. 147 of 2020
(State vs. Devendra and others). On the
basis of the aforesaid complaint, the
Additional Chief Judicial Magistrate-ll,
Gautam Budh Nagar vide order dated
17.07.2020, after considering the entire
materials on record had directed the
Commissioner of Police, Gautam Budh
Nagar to look into the matter and inquire
the same and also directed SHO, P.SSurajpur, to arrest the informant within one
month and to produce the same before him.
Till date, the informant is not yet arrested
nor the order dated 17.07.2020 of the 2nd
ACJM, Gautam Budh Nagar is complied.
In
fact,
the
police
authorities
are
demanding Rs. 5 lakhs from the revisionist
in order to get the matter investigated.
670 INDIAN LAW REPORTS ALLAHABAD SERIES

(III) The present case is a counter
blast of the earlier case lodged by the
revisionist against the informant as Case
Crime No. 1851 of 2019, under Sections
406, 420, 467, 468, 471, 384, 388, 389,
504, 506 & 120-B IPC, Police Station-
Surajpur, District-Gautam Budh Nagar.

(IV) The dispute between both
the parties is civil in nature than the
criminal, therefore, the informant should be
asked to avail appropriate remedy as may
be
permissible
under
law
before
appropriate court of law/forum, which he
has not opted.

(V) The company in the name
and style of M/s. Family of Dry Fruits India
Pvt. Ltd. has not been made an accused in
the present criminal proceedings, which is
mandatory as per law. The present case
comes under the ambit of the Sales of
Goods Act, 1930 and Section 55 of the said
Act will apply in the facts of the present
case. There is no exchange of sale of goods
nor any goods had been sold by the parties.
The revisionist had no concern with any of
the firm and company mentioned in the
first information report except M/s. Family
of Dry Fruits, which is still in operation and
the revisionist is the Ex-Director of the said
company.

(VI) In paragraph no. 37, the
revisionist has detailed as many as 33
criminal cases, which have been initiated
against him and he has also satisfactorily
explained about the said cases.

(VII) The concerned Magistrate
has
erred
in
entertaining
the
transit
anticipatory bail and had exceeded his
jurisdiction by observing that the Rohini
Court, Delhi has no jurisdiction while passing
the impugned order dated 3rd November,
2022. In the similar matter, this Court in
Criminal Misc. Anticipatory Bail Application
No. 5284 of 2022 (Amita Garg and 6 others
vs. State of U.P. and 3 others) vide order
dated 16.07.2022 had allowed the petition. In
the present case, there is a violation of
fundamental rights of Article 21 of the
Constitution of India. The revisionist is in
illegal custody and the same is evident from
the order dated 03.11.2022. At the time of
hearing in the Supreme Court, the Court had
orally directed the revisionist to file the case
before proper forum as the custody is illegal
and the Hon'ble Supreme Court is not the
correct forum.

(VIII) The informant had not
mentioned in what manner, the revisionist is
involved in the aforesaid firm and company
neither any specific averment had been made
that the revisionist is responsible for the dayto-day affairs of the company, which is
necessary for the adjudication of the case.
The revisionist is not the beneficiary/share
holder/signatory in any of the company
mentioned in the first information report
except M/s. Family of Dry Fruits India Pvt.
Ltd.

(IX) The revisionist had not
prepared any forged document nor anything
incriminating has been recovered from his
possession or his pointing out so as to
connect him with the present criminal case.

(X) The revisionist has been
implicated in the present case due to the fact
that he had business rivalry with one
Devendra
Bansal
against
whom,
the
revisionist had lodged the first information
report but since the Police in connivance with
Devendra
Bansal
had
implicated
the
revisionist in the present case.

(XI) No offence is made out
against the revisionists under Section 406
9 All. Mohit Kumar Goyal Vs. State of U.P. & Anr.
671
IPC as there is no entrustment of any
property nor the revisionist had any
dominion property nor the revisionist had
dishonestly misappropriated or converted
that property to his own use or disposed
of that property in violation of any law
prescribed. Further no offence is made
out against the revisionists under Section
420 IPC as there is no intention of
cheating from inception. Again, no
offence
is
made
out
against
the
revisionist under Sections 467, 468, 471
IPC as the revisionist has not fabricated
or made any document. Further no
offence
is
made
out
against
the
revisionist under Section 506 IPC as the
revisionist
had
not
threatened
or
intimidated by any means. Lastly, no
offence
is
made
out
against
the
revisionists under Section 120-B IPC as
no conspiracy had been hatched by the
revisionists nor they had entered into any
type of conspiracy.

(XII)
Regarding
the
illegal
custody of the accused-revisionist, the
judgment and order of this Court dated
18.06.1992, a copy of which has been
enclosed as Annexure No. 11 to the
affidavit
accompanying
the
present
criminal revision, has been referred to on
behalf of the revisionist.

(XIII) As per Section 15 of the
Code of Criminal Procedure, the Additional
Chief Judicial Magistrate-II, Gautam Budh
Nagar has no power to pass the order
impugned, even when an order granting
transit anticipatory bail to the revisionist
has been passed by the Additional Sessions
Judge, Rohini Court, Delhi dated 2nd
November,
2023.
The
concerned
Magistrate has misread and ignored the
hierarchy
while
passing
the
order
impugned.

On the cumulative strength of the
aforesaid,
learned
counsel
for
the
revisionist submits that since the revisionist
has no motive whatsoever to commit the
aforesaid offence and he is totally innocent
of the charges levelled against him in the
first information report, this Court while
exercising
its
powers
under
Section
397/401 Cr.P.C. may quash the impugned
order dated 03.11.2022 passed by the
Second
Additional
Chief
Judicial
Magistrate, Gautam Budh Nagar in Case
Crime No.-106 of 2021, under Sections
406, 420, 467, 468, 471 & 120-B IPC,
Police Station-Surajpur, District-Gautam
Budh Nagar.

10. Per contra, before considering the
case on merit, Mr. Vinay Saran, learned
Senior Advocate appearing on behalf of
opposite party no.2 and the learned A.G.A.
have made preliminary objection to the
maintainability of the present instant
criminal revision by contending that since
the
order
impugned
is
an
interim/interlocutory order, the present
revision under Section 397/401 Cr.P.C. is
not maintainable. On merits of the order
impugned, they have also have opposed all
the submissions made by the learned
counsel for the revisionist by contending
that there is no illegality or infirmity in the
impugned order passed by the concerned
Magistrate
issuing
"B"
warrant
and
directing the accused-revisionist to appear
before the Court of Additional Chief
Judicial
Magistrate-II,
Noida,
District
Gautam Budh Nagar.

11. Mr. Saran also contends that the
anticipatory bail would not lie and would
not be maintainable if a person is already
arrested and is in custody of police or
judicial custody in relation to another
criminal case, which may be for similar
672 INDIAN LAW REPORTS ALLAHABAD SERIES
offence or for different offences. In support
of his plea, Mr. Saran has referred to the
judgment of a learned Single Judge of the
Rajasthan High Court dated 25th October,
2021 passed in S.B. Criminal Misc. Bail
Application No. 9155 of 2019 (Sunil
Kallani Vs. State of Rajasthan Through
Public Prosecutor). Mr. Saran has also
relied upon the judgment of a learned
Single Judge of this Court dated 9th
December, 2022 passed in Criminal Misc.
Anticipatory
Bail
Application
Under
Section 438 Cr.P.C. No.-4633 of 2022
(Rajesh Kumar Sharma Vs. Central Bureau
of Investigation).

12. This Court has considered the
submissions made by the learned counsel
for the parties and has gone through the
records of the present criminal revision
including the order impugned passed by the
concerned Magistrate.

13. Firstly, this Court may record that
all the submissions made by the learned
counsel for the revisionist qua the legality,
illegality or otherwise of the present
criminal proceedings which have been
initiated by opposite party no.2 against the
revisionist cannot be examined by this
Court while exercising its revisional power
under Section 397/401 of Code of Criminal
Procedure. The said submissions can only
be examined by the Bench exercising its
extraordinary power under Sections 482
Cr.P.C. This Court can only examine the
correctness, legality, illegality or otherwise
of the order which is under challenge in the
present criminal revision.

14. The Apex Court in the case of
Amit Kapoor Vs. Ramesh Chander &
Another reported in (2012) 9 SCC 460 has
opined that the jurisdiction of the court
under Section 397 Cr.P.C. can be exercised
so as to examine the correctness, legality or
propriety of an order passed by the trial
court or the inferior court, as the case may
be, whereas Section 482 Cr.P.C. confers a
very wide power on the Court to do justice
and to ensure that the process of the court is
not permitted to be abused.

15. Paragraph nos. 12, 13,18, 20 and
21 of the judgment in the case of Amit
Kapoor (Supra), which are relevant on the
aforesaid issue, are being quoted herein
below:

"12. Section 397 of the Code
vests the court with the power to call for
and examine the records of an inferior
court for the purposes of satisfying itself as
to the legality and regularity of any
proceedings or order made in a case. The
object of this provision is to set right a
patent defect or an error of jurisdiction or
law. There.M. 4th has to be a well- founded
error and it may not be appropriate for the
court to scrutinize the orders, which upon
the face of it bears a token of careful
consideration
and appear
to
be
in
accordance with law. If one looks into the
various judgments of this Court, it emerges
that the revisional jurisdiction can be
invoked
where
the
decisions
under
challenge are grossly erroneous, there is
no compliance with the provisions of law,
the finding recorded is based on no
evidence, material evidence is ignored or
judicial discretion is exercised arbitrarily
or perversely. These are not exhaustive
classes, but are merely indicative. Each
case would have to be determined on its
own merits.

13. Another well-accepted norm
is that the revisional jurisdiction of the
higher court is a very limited one and
cannot be exercised in a routine manner.
9 All. Mohit Kumar Goyal Vs. State of U.P. & Anr.
673
One of the inbuilt restrictions is that it
should not be against an interim or
interlocutory order. The Court has to keep
in mind that the exercise of revisional
jurisdiction itself should not lead to
injustice ex facie. Where the Court is
dealing with the question as to whether the
charge has been framed properly and in
accordance with law in a given case, it may
be reluctant to interfere in exercise of its
revisional jurisdiction unless the case
substantially falls within the categories
aforestated. Even framing of charge is a
much advanced stage in the proceedings
under the Cr.P.C.

....

18. It may also be noticed that the
revisional jurisdiction exercised by the
High Court is in a way final and no inter
court remedy is available in such cases. Of
course, it may be subject to jurisdiction of
this court under Article of the Constitution
of India. Normally, a revisional jurisdiction
should be exercised on a question of law.
However, when factual appreciation is
involved, then it must find place in the class
of cases resulting in a perverse finding.
Basically, the power is required to be
exercised so that justice is done and there
is no abuse of power by the court. Merely
an apprehension or suspicion of the same
would not be a sufficient ground for
interference in such cases.

....

20. The jurisdiction of the Court
under Section 397 can be exercised so as to
examine
the
correctness,
legality
or
proprietary of an order passed by the trial
court or the inferior court, as the case may
be. Though the section does not specifically
use the expression 'prevent abuse of
process of any court or otherwise to secure
the ends of justice', the jurisdiction under
Section 397 is a very limited one. The
legality, proprietary or correctness of an
order passed by a court is the very
foundation of exercise of jurisdiction under
Section 397 but ultimately it also requires
justice to be done. The jurisdiction could be
exercised where there is palpable error,
non-compliance with the provisions of law,
the decision is completely erroneous or
where the judicial discretion is exercised
arbitrarily. On the other hand, Section 482
is based upon the maxim quando lex liquid
alicuiconcedit, conceder videtur id quo res
ipsa esse non protest, i.e., when the law
gives anything to anyone, it also gives all
those things without which the thing itself
would be unavoidable. The Section confers
very wide power on the Court to do justice
and to ensure that the process of the Court
is not permitted to be abused.

21. It may be somewhat necessary
to have a comparative examination of the
powers exercisable by the Court under
these two provisions. There may be some
overlapping between these two powers
because both are aimed at securing the
ends of justice and both have an element of
discretion. But, at the same time, inherent
power under Section 482 of the Code being
an extraordinary and residuary power, it is
inapplicable in regard to matters which are
specifically provided for under other
provisions of the Code. To put it simply,
normally the court may not invoke its
power under Section 482 of the Code where
a party could have availed of the remedy
available under Section 397 of the Code
itself. The inherent powers under Section
482 of the Code are of a wide magnitude
and are not as limited as the power under
Section 397. Section 482 can be invoked
where the order in question is neither an
674 INDIAN LAW REPORTS ALLAHABAD SERIES
interlocutory order within the meaning of
Section 397 (2) nor a final order in the
strict sense. Reference in this regard can be
made to Raj Kapoor & Ors. Vs. State of
Punjab & Ors. [AIR 1980 SC 258 : (1980)
1 SCC 43]}. In this very case, this Court
has observed that inherent power under
Section 482 may not be exercised if the bar
under Sections 397 (2) and 397 (3) applies,
except in extraordinary situations, to
prevent abuse of the process of the Court.
This itself shows the fine distinction
between the powers exercisable by the
Court under these two provisions. In this
very case, the Court also considered as to
whether the inherent powers of the High
Court under Section 482 stand repelled
when the revisional power under Section
397 overlaps. Rejecting the argument, the
Court said that the opening words of
Section 482 contradict this contention
because nothing in the Code, not even
Section 397, can affect the amplitude of the
inherent powers preserved in so many
terms by the language of Section 482.
There is no total ban on the exercise of
inherent powers where abuse of the process
of the Court or any other extraordinary
situation invites the court's jurisdiction.
The limitation is self-restraint, nothing
more. The distinction between a final and
interlocutory order is well known in law.
The orders which will be free from the bar
of Section 397 (2) would be the orders
which are not purely interlocutory but, at
the same time, are less than a final
disposal. They should be the orders which
do determine some right and still are not
finally rendering the Court functus officio
of the lis. The provisions of Section 482 are
pervasive. It should not subvert legal
interdicts written into the same Code but,
however, inherent powers of the Court
unquestionably have to be read and
construed as free of restriction."

16. Before coming to the merits of the
order impugned, it would be worthwhile to
reproduce the relevant portion of the order
passed by the Rohini Court, Delhi dated
2nd November, 2022, which reads as
follows:

"Findings:

Considering the submissions and
without going into the merits of the case, I
am of the opinion that applicant/accused
deserves limited opportunity to avail his
legal remedies as permissible under Law
Therefore, in the event of arrest the
applicant/accused Mohit Goel shall be
released on bail on furnishing a personal
bond in the sum of Rs. 50,000/- with one
surety in the like amount to the satisfaction
of the arresting officer. This order shall
operate for a period of 8 days during,
which period the applicant/accused may
move an appropriate application before the
Court concerned at Noida, UP or before
the
Hon'ble
High
Court
of
.M.
4thJudicature at Allahabad, UP. During
the said period the following conditions are
being imposed upon the accused:-

"(1) Applicant/accused shall not
leave the country without permission from
the court concerned.

(2)
Applicant/accused
shall
immediately provide his address and
mobile number to the Investigating Officer
and shall also share his location with the
IO.

(3) The applicant/accused shall
not threaten or contact the complainant
and shall not tamper with the evidence.

This order of Protection shall
stands
automatically
be
vacated
on
9 All. Mohit Kumar Goyal Vs. State of U.P. & Anr.
675
11.11.2022. No further extension shall be
given to the applicant/accused.

Needless to say that the accused
shall surrender after the expiry of the said
period in case no further protection is
granted to him, while availing his legal
remedies.

It
is
clarified
that
nothing
mentioned herein shall tantamount to
expression of opinion on the merits of the
case.

With these observations, bail
application stands disposed of.

Copy of this order be given dasti
to the Ld. Counsel for applicant/accused."

17. Now coming on the merits of the
order impugned. Before the concerned
Magistrate, it has been stated by the Public
Prosecuting
Officer
that
a
summons
warrant/"B" warrant dated 19-10-2022 has
been sent by the court against the accused to
Tihar District Jail, due to which the accused
has been in custody. It has also been stated by
the Public Prosecuting Officer that the
jurisdiction to grant transit remand to the
accused under Section 177 Cr.P.C. read with
Chapter-XXXIII is not within the jurisdiction
of ASJ (Electricity) (N-W) Rohini Court,
Delhi. It has also been stated by the Public
Prosecuting Officer that since the concerned
prison was ordered to present the accused in
the Court of concerned Magistrate vide Bwarrant dated 19-10-2022 against the accused
and the accused was directly/indirectly in the
custody of the court so in that case the
accused cannot be given the benefit of
anticipatory bail.

18. After considering the submissions
made by the learned counsel for the
accused-revisionist
and
the
Public
Prosecuting
Officer,
the
concerned
Magistrate has recorded its finding that in
the present case, the accused presented in
the court in custody and no application for
regular bail has been made on his behalf.
The concerned Magistrate has further
recorded that the ASJ (Electricity) (N-W)
Rohini Court, Delhi has passed an order
directing the Investigating Officer. On the
basis of aforesaid finding the concerned
Magistrate vide order impugned has come
to the conclusion that the basis for
accepting the remand application submitted
by the Investigating Officer is sufficient.
The remand of the accused is accepted till
16-11-2022.
The
accused
should
be
summoned to Tihar Jail on 16-11-2022
after taking the warrant "B" under Section
167 Cr.P.C.

19. On overall assessment and
evaluation of the facts as cropped up before
this Court, there are two legal issues, which
need deeper scrutiny by this Court while
deciding the present criminal revision and
examining the order impugned:

(i) Whether the order impugned is
legally passed by the Additional Chief
Judicial Magistrate-II, Gautam Budh Nagar
dated 3rd November, 2022, and

(ii) Whether the present criminal
revision against the order impugned is
legally maintainable or not?

20. Before coming on the first issue,
this Court may record that there is no
legislation or law which defines ''transit
anticipatory bail' in definitive or specific
terms. The 41st Law Commission Report in
1969 recommended the provision of
Anticipatory bail to safeguard the right to
life and personal liberty of a person under
676 INDIAN LAW REPORTS ALLAHABAD SERIES
Article 21 of the Constitution of India. In
the Code of Criminal Procedure 1973, on
such
recommendation,
provision
of
Anticipatory Bail was inserted in Section
438. The term ''transit' means the act of
being moved from one place to another
while the word ''anticipatory bail' means a
temporary release of any accused person
who is anticipating arrest, therefore, transit
anticipatory bail refers to bail granted to
any person who is apprehending arrest by
police of a State other than the State he is
presently located in.

21. Section 438 of the Code of
Criminal Procedure specifies direction for
grant of bail to a person apprehending
arrest and moreover confers power only
upon the High Court and the Court of
Sessions to grant anticipatory or transit bail
if they deem fit. At the point when an
individual has the motivation to accept that
he might be arrested on an allegation of
having committed a non-bailable offence,
he may apply to the High Court or the
Court of Session for a grant of anticipatory
bail. The Court may, as it thinks fit, direct
that in case of such arrest, he will be
released on anticipatory bail.

22. Nonetheless, transit anticipatory
bill is different from ordinary bail.
Ordinary bail is granted after arrest,
releasing the accused from custody while
anticipatory
bail
is
granted
in
the
anticipation of arrest i.e., it precedes
detention of the accused and is effective
immediately at the time of the arrest. In
plain words, when an accused is arrested in
accordance with the order of the court and
whereas .M. 4ththe accused needs to be
tried in some other competent court having
jurisdiction in the aforementioned matter,
the accused is given bail for the transitory
period i.e., the time period required for the
accused to reach that competent court from
the place he is arrested in.

23. This may further record that
transit anticipatory bail is protection from
arrest for a definite period as granted by the
Court granting such transit anticipatory
bail. The mere fact that an accused has
been granted transit anticipatory bail, does
not means that the regular court, under
whose jurisdiction the case would fall,
would extend such transit anticipatory bail
and would convert such transit anticipatory
bail into anticipatory bail. Upon the grant
of transit anticipatory bail, the accused
person, who has been granted such transit
anticipatory
bail,
has
to
apply
for
anticipatory bail or regular bail before the
regular court.

24. This Court has no room to doubt
that the order dated 2nd November, 2022
granting transit anticipatory bail to the
revisionist, who was already in jail in
another case passed by Additional Sessions
Judge,
Rohini
Court,
Delhi
is
superior/higher Court than the court of
Additional Chief Judicial Magistrate-II,
Gautam Budh Nagar, which has passed the
order impugned issuing "B" warrant
against the revisionist and also directed him
to appear in jail. However, in the order
granting transit anticipatory bail to the
revisionist,
it
has
specifically
been
provided that the said order shall operate
for a period of 8 days during which period
the accused-revisionist may move an
appropriate
application
before
the
concerned Court at Noida, U.P. or before
the Hon'ble High Court of Judicature at
Allahabad, U.P., meaning thereby that as
and
when
the
accused-revisionist
appears/surrenders before the concerned
Court of Magistrate at Noida or he is
produced by the Police from the Tihar Jail,
9 All. Mohit Kumar Goyal Vs. State of U.P. & Anr.
677
Delhi before the said Court, the order
granting transit anticipatory bail to the
revisionist by the Additional Sessions
Judge, Rohini Court, Delhi would come to
an end automatically. The said protection
had been given to the revisionist for a
limited place i.e. Tihar Jail, Delhi to reach
Court of concerned Magistrate at Noida.
Therefore, the concerned Magistrate while
passing the order impugned has not
committed any illegality or infirmity as
also he has not mislead/overlooked or
ignored the order of the Additional
Sessions Judge, Rohini Court, Delhi dated
2nd November, 2022. As such, the
submission of the learned counsel for the
revisionist that as per Section 15 of the
Code of Criminal Procedure, the concerned
Magistrate has no power to pass the order
impugned issuing "B" warrant against the
revisionist, has no legs to stand, as Section
15 is not applicable in the facts of the
present case.

25. In view of the aforesaid, this
Court finds that the issue no.1 goes against
the revisionist, as there is no illegality or
infirmity in the impugned order passed by
the concerned Magistrate.

26. Apart from the above, this Court
also finds substance in the submission
made by the learned counsel for opposite
party no.2 that any application filed on
behalf of an accused who is already in jail
in another criminal case for grant of
anticipatory bail is not maintainable.

27. This Court is of the considered
opinion that anticipatory bail under Section
438 Cr.P.C. on behalf of a person who is
already in custody with the Police or is
already in jail in another criminal case
would not lie and would be nothing but
travesty
of
justice
in
allowing
the
anticipatory bail to such an accused (Ref.
Narinderjit Singh Sahni & Another Vs.
Union of India reported in (2002) 2 SCC
210).

28. It is also to be noted that in the
order impugned itself it has been recorded
that the accused-revisionist has not made
any application for grant of anticipatory
bail before the concerned Magistrate.

Now this Court comes on the
second issue.

29. This Court further finds substance
in the submission made by the learned
counsel for opposite party no.2 and the
learned A.G.A. that the present criminal
revision under Section 397/401 Cr.P.C. is
not
maintainable
against
the
order
impugned which is an interim/interlocutory
order, whereby the concerned Magistrate
has only issued "B" warrant against the
revisionist and also directed him to appear
before the Court of Additional Chief
Judicial
Magistrate-II,
Noida,
District
Gautam Budh Nagar on the application
made by the Investigating Officer. On this
aspect of the matter, when the Court made
pointed query to the learned counsel for the
revisionist as to under which provision of
law, the present criminal revision against
an
interlocutory/interim
order
is
maintainable, he could not answer the
same.

30. The Apex Court in the case of
Amar Nath & Others Vs. State of
Haryana & Others reported in 1977 0 AIR
(SC) 2185 has held as follows:

"Thus,
for
instance,
orders
summoning witnesses, adjourning cases,
passing orders for bail, calling for reports
and such other steps in aid of the pending
678 INDIAN LAW REPORTS ALLAHABAD SERIES
proceeding, may no doubt amount to
interlocutory orders against which no
revision would lie under Section 397 (2) of
the Code of Criminal Procedure."

(Emphasis supplied)

31. The said judgment of the Apex
Court has recently been followed by
another Division Bench of the Apex Court
in the case of Honnaiah T.H. Vs. State of
Karnataka & Others reported in 2022
SCC OnLine SC 1001. The Apex Court in
the case of Honnaiah T.H. (Supra) has
opined as follows:

"13. There would be a serious
miscarriage of justice in the course of the
criminal trial if the statement were not to
be marked as an exhibit since that forms
the basis of the registration of the FIR. The
order of the trial judge cannot in these
circumstances
be
treated
as
merely
procedural or of an interlocutory in nature
since it has the potential to affect the
substantive course of the prosecution. The
revisional jurisdiction under Section 397
CrPC can be exercised where the interest
of public justice requires interference for
correction of manifest illegality or the
prevention of gross miscarriage of justice.
A
court
can
exercise
its
revisional
jurisdiction against a final order of
acquittal or conviction, or an intermediate
order not being interlocutory in nature. In
the decision in Amar Nath v State of
Haryana, this Court explained the meaning
of the term "interlocutory order" in
Section 397 (2) CrPC. This Court held that
the
expression
"interlocutory
order"
denotes orders of a purely interim or
temporary nature which do not decide or
touch upon the important rights or
liabilities of parties. Hence, any order
which substantially affects the right of the
parties
cannot
be
said
to
be
an
"interlocutory order". Speaking for a twoJudge Bench, Justice Murtaza Fazal Ali
observed:

"6. [...] It seems to us that the
term "interlocutory order" in Section 397
(2) of the 1973 Code has been used in a
restricted sense and not in any broad or
artistic sense. It merely denotes orders of a
purely interim or temporary nature which
do not decide or touch the important rights
or the liabilities of the parties. Any order
which substantially affects the right of the
accused, or decides certain rights of the
parties
cannot
be
said
to
be
an
interlocutory order so as to bar a revision
to the High Court against that order,
because that would be against the very
object which formed the basis for insertion
of this particular provision in Section 397
of the 1973 Code. Thus, for instance,
orders summoning witnesses, adjourning
cases, passing orders for bail, calling for
reports and such other steps in aid of the
pending
proceeding,
may
no
doubt
amount to interlocutory orders against
which no revision would lie under Section
397 (2) of the 1973 Code. But orders which
are matters of moment and which affect or
adjudicate the rights of the accused or a
particular aspect of the trial cannot be said
to be interlocutory order so Amit Kapoor v
Ramesh Chander, (2012) 9 SCC 460;
Sheetala Prasad v Sri Kant, (2010) 2 SCC
190 6 (1977) 4 SCC 137 as to be outside
the purview of the revisional jurisdiction of
the High Court."

(Emphasis supplied)

14. Explaining the historical
reason for the enactment of Section 397 (2)
CrPC, this Court observed in Amar Nath
(supra) that the wide power of revision of
9 All. Mohd. Arif Vs. State of U.P.