HC uses inherent powers to hear Digambar's bail matter

GOANEWS DESK, PANAJI | 04 September 2015 21:15 IST

The high court has decided to take up the matter of granting anticipatory bail to former chief minister Digambar Kamat by using the inherent powers it has to review any order of the lower court.

Accordingly, Bombay high court at Goa would now start hearing from next Thursday whether the CBI court was right in granting anticipatory bail to Kamat.

In its order on the issue of maintainability passed today, Justice K L Wadane said the high court would review the CBI court’s order under the inherent powers the high court enjoys under section 482 of CrPC.

The order came almost two weeks after arguing whether the lower court order could be challenged under section 439 (2) of CrPC.

The crime branch of Goa police had challenged the CBI court’s order on 20 August, under section 439 (2), read with section 482 of CrPC.

Kamat, along with former PWD minister Churchill Alemao, is facing a charge of accepting huge amount of briber from US-based consultancy firm Louis Berger International Inc., for executing a Japan-financed project of water supply and sewerage.

During the investigation, Alemao was arrested by the crime branch on 5 August and is still in jail for a month.

His bail applications have been rejected twice by the CBI court since then. He has now approached the high court, asking to grant him bail.

Kamat, who had filed for anticipatory bail on the same day (5 August), however was granted bail by the CBI court and has not been arrested till date.

When the crime branch reached the high court challenging the CBI court’s order regarding Kamat, Adv Surendra Desai had argued how the police could go into appeal without even technically arresting and releasing Kamat – the requirement of section 439 (2) of CrPC.

In this regard, the high court has now decided not to take up the matter under section 439 (2) since it is a debatable issue.

“…it appears to me that where the order granting anticipatory bail without admitting the accused on bail, whether such order can be challenged under Section 439(2) of CrPC or not is a debatable point. But one thing is very much clear that when an anticipatory bail is granted to the accused and before admitting the accused on bail, there is no provision in law to challenge such order.”

However Justice Wadane said that such order can be challenged before this Court by invoking jurisdiction under Section 482 of CrPC.

“…this Court can certainly examine legality or correctives of the order passed by subordinate Court by invoking inherent power vested in it under Section 482 CrPC. Even in exercise of inherent power vested in this Court, this Court can Suo Motto take cognizance of any order passed by the subordinate Criminal Courts.”

Since the crime branch had challenged the order under sections 439 (2) as well as 482, the high court has now decided to hear the petition by using its inherent power under section 482 of CrPC. 

(Click on the link below to read complete order of HC)

HC order on maintainability of Crime Branch petition on Digambar bail matter

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