Magistrate Doesn’t Possess Powers To Modify Bail Conditions Once Granted; Power U/S.439(1)(b) CrPC Expressly Vested In High Court Or Court Of Session: Delhi High Court

The High Court was considering a petition filed under Articles 226 and 227 of the Constitution, read with section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), whereby the petitioners sought the setting aside of the order passed by the Chief Judicial Magistrate, whereby travel restrictions had been imposed upon the petitioners, requiring them to seek prior permission of the Magistrate before travelling abroad.

The Single Bench of Justice Anup Jairam Bhambhani held, “To reiterate, under section 439(1)(b) of the Cr.P.C. the power to setaside or modify conditions imposed in a bail order passed by a learned Magistrate is expressly vested in the High Court or the Court of Session. A Magistrate does not possess parallel powers to modify conditions of bail once granted. While respondents Nos. 2 and 3 have cited precedent suggesting that bail conditions can be varied, those principles apply only to superior courts exercising powers under section 439 Cr.P.C., not to Magistrates seeking to alter their own orders. The impugned order was therefore also passed without jurisdiction and is non-est in law.”

Senior Advocate Jayant K. Sud represented the Petitioner, while Additional Standing Counsel Amol Sinha represented the Respondent.

Factual Background

The petitioners were granted bail in a case registered under sections 420, 406, 422, 424, 409, 120B of the Indian Penal Code, 1860. Upon an apprehension that the petitioners would abscond, in September 2024, the authorised representative of the complainant company/second respondent filed an application before the CJM, praying that restrictions be placed upon the petitioners, requiring them to seek prior permission of the court before travelling outside India. On the complainant’s application, the CJM introduced the condition directing the petitioners to take prior permission of the court before leaving the country. Aggrieved by the aforementioned condition imposed, the petitioners filed revision petitions, and the Sessions Court stayed the operation of the order passed by the CJM qua the petitioners.

The Sessions Court directed the CJM to decide the matter afresh. The CJM held that it would be ideal for the accused persons to seek prior permission from the Court before leaving the country. The petitioners thus sought quashing of the impugned order.

Reasoning

Considering that the original bail order passed by the CMM did not impose any requirement that the petitioners were to take prior permission of the court to travel abroad, the Bench noted that the condition of travel restrictions sought to be enforced through subsequent orders was not part of the original bail conditions.

The Bench stated, “It is a well-established principle of criminal jurisprudence that criminal courts do not possess inherent power of review in the absence of any express statutory provision. Section 362 Cr.P.C. categorically provides that once a court has signed its judgment or final order, it shall not alter or review the same except to correct a clerical or arithmetical error. Order dated 15.02.2025, by which the learned CJM imposed travel restrictions, was clearly in the nature of a review or modification of the original bail order dated 23.03.2021 since the court was inserting a new condition by way of the travel restrictions in the original bail order. The learned CJM had no jurisdiction to undertake such an exercise.”

As per the Bench, to characterize the insertion of a new bail condition as a “clarification” was clearly a misnomer. “An order can only ‘clarify’ an ambiguity or imprecision in what may have been said in an order. When the original order dated 23.03.2021 did not contain any requirement of obtaining prior permission to travel abroad, there was nothing to clarify on that count; and a new condition could not have been added in view of the bar contained in section 362 Cr.P.C”, it explained.

On a perusal of the facts of the case, the Bench noted that the petitioners had travelled abroad on multiple occasions after taking permission of the court and complying with all conditions imposed. The Bench also noted that the petitioners had returned to India each time without fail, and they also had maintained a fair record of appearance over several years of pendency of the proceedings before the Magistrate, either in person or via videoconferencing or through counsel.

Considering that the CJM’s order imposing the travel restraints was itself passed without jurisdiction, and was accordingly non-est, the Bench held that the technical violation of an order that was jurisdictionally flawed, coupled with the petitioners’ consistent compliance with court processes and their voluntary return to India after each foreign travel, did not warrant any punitive action against the petitioners, especially since no actual prejudice appeared to have been caused to any party in the trial.

Allowing the petition, the Bench set aside the impugned order passed by the Chief Judicial Magistrate and ordered, “It is directed that the petitioners shall remain bound by the conditions imposed in the original bail order dated 23.03.2021, without any requirement to seek prior permission of the court to travel abroad.”

Cause Title: Shabir Momin & Anr. v. State NCT of Delhi & Ors. (Neutral Citation: 2026:DHC:4866)

Appearance

Petitioner: Senior Advocate Jayant K. Sud, Advocates Samarjit G. Pattnaik, Sahib Kochhar, Kashish Seth, Gaurav Vutts, Aryan Mishra, Ujjawal Anand Sharma, Prashant Sivarajan, Tushar Saigal, Shweta Divedi

Respondent: Additional Standing Counsel Amol Sinha, Advocates Kshitiz Garg, Ashvini Kumar, Manan Wadhwa, Nitish Dhawan, Hrishikesh Baruah, Kumar Kshitij, Sundeep Goel, Utkarsh Dwivedi, Pragya Agarwal, Nishtha Sachan, Yashaswy Ghosh, Simran Dhingra

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