OEDER R.C. Lahoti, J. 1. The applicant, one of the two, facing a trial on charges under Section 302/34 I.P.C and Section 25-B of the Arms Act, has come up to this Court seeking bail. 2. As borne out from the bail petition and the submissions made at the Bar, prayer for bail is pressed mainly on the ground that the applicant has been in custody since 15-9-1987, and the trial has not concluded so far, though a period of 15 months has elapsed. 3. The prayer was vehemently opposed on behalf of the State, submitting that the prosecution is not to blame for the delay, but a major contribution has been made by the accused themselves in delaying the trial. In view of this submission, the record of the trial Court was called for and examined. 4. The proceedings before the committing Court show that the challan was filed on 16-11-1987. The case was adjourned on 27-11-1987, because the Presiding Officer was on leave. On 24-12-1987, the Court was closed on account of a holiday. On 29-12-1987 and 6-1-1988, the hearing had to be adjourned, because the record was requisitioned by the Sessions Court while hearing the bail application filed by the applicant. On 20-1-1988, as soon as the record was received from the Sessions Court, an order of committal was passed. 5. Before the Sessions Court, on 11-2-1988, the accused prayed for an adjournment, because they wanted to engage a counsel. On 2-3-1988, the lawyers were on general strike. On 15-4-1988, the accused could not be produced in the Court, because Police force was not available. On 29-4-1988, for the first time, the accused submitted that they were not in a position to engage a counsel as no one of their family had come up to assist them. Accordingly, the Court appointed an amicus curiae. On 6-5-1988 and 7-5-1988, one of the accused could not be produced from Jail, being indisposed. On 6-6-1988, Presiding Officer was on leave. On 22-6-1988, the accused were not produced for want of Police force. On 30-6-1988, accused Rakesh was reported to be sick while on 8-7-1988, the accused Daini alias Raju was reported to be sick. On 14-7-1988, the charges were framed and thereafter, the prosecution filed a programme according to which, the trial commenced on 14-10-1988. On 22-6-1988, the accused were not produced for want of Police force. On 30-6-1988, accused Rakesh was reported to be sick while on 8-7-1988, the accused Daini alias Raju was reported to be sick. On 14-7-1988, the charges were framed and thereafter, the prosecution filed a programme according to which, the trial commenced on 14-10-1988. An eye-witness was examined, but the defence counsel prayed for an adjournment on the ground that he would like to cross-examine all the eye-witnesses together. On 15-10-1988, six witnesses including the uncross-examined eye-witness were present in the Court and if only the witnesses would have been examined, a major part of the trial would have been over. But the defence counsel prayed that he was busy appearing before High Court but without stating any case in which he was busy, and hence, the case had to be adjourned. Incidentally, it may be stated that 15-10-1988 was fixed for trial of the case from much before and the hearing had been adjourned to this day just on the previous day in the presence of defence counsel, still the defence was not ready to co-operate in the trial. 6. On the adjourned dates of hearing, the witnesses were not present. The case was then taken up on 22-12-1988, on which dated, one witness was examined. On 25-1-1989, about five witnesses were present, but the Presiding Officer was on leave. Now the case stands posted for trial on 13-2-1989 and 14-2-1989. 7. A number of authorities have been cited by the learned Counsel for the applicant to show that an expeditious trial is the fundamental right of the accused and delay would entitle the accused to the grant of bail. There cannot be a quarrel with the proposition. The authorities need not be referred for the simple and singular reason that none of them contemplates a situation where the Court may have granted the bail, though the prosecution was not to blame for delay at the trial or a situation where the accused himself may have been responsible either wholly or partially for causing the delay. It is writ large on the record of the case that the prosecution has not delayed the trial. It is writ large on the record of the case that the prosecution has not delayed the trial. On two days of hearing when sufficient evidence for the prosecution was available to be recorded, the case had to be adjourned either at the instance of the defence or because the Presiding Officer was on leave. 8 Recently in Diwan Naubat Rai and Ors. v. State 1989 Cri. L. R. 1 (SC), observed their Lordships, though in connection with a prayer for quashing the proceedings on account of delay at the trial: It is not possible to agree with the submissions made on behalf of the Petitioners that the prosecution was responsible for the case not being decided between 13-7-1987 and the date of filing of writ petitions and the proceedings in the case do not therefore, deserve to be quashed on this ground. (Emphasis supplied). 9. The nature of accusation against the applicant may be seen. According to the F.I.R., on 8-9-1987, at about 10.30 a. m., in broad day light, the two accused reached the shop of the deceased Prem Narayan. Co-accused Rakesh was armed with a naked sword. The applicant was armed with a knife. The two accused asked the victim to explain as to why he had lodged a report to the Police against them. Before the accused could even speak, the two opened an attack with their respective weapons, each of them causing multiple injuries to the hapless victim causing his cold-blooded end. In the thickly populated licality and in the open market, none could dare to intervene and the two accused successfully escaped. 10. Needless to say, the facts of the case or the argument built-up on the foundation of the delay at the trial, none entitles the a. cused-applicant to the grant of bail. 11. There is a disgusting feature of the case which must be noticed. Para 1 of the application states that this is the first application for bail moved by the applicant. The learned Additional Government Advocate pointed out that the statement is false and there was an earlier bail petition by the same applicant registered as Cr. Misc. Case No. 190/88 which was rejected by this Court on 11-7-88 by a Bench presided over by Hon'ble Shri Justice K. K. Varma. The record of the case was called and perused. The learned Additional Government Advocate pointed out that the statement is false and there was an earlier bail petition by the same applicant registered as Cr. Misc. Case No. 190/88 which was rejected by this Court on 11-7-88 by a Bench presided over by Hon'ble Shri Justice K. K. Varma. The record of the case was called and perused. There, the applicant was described simply as 'Raju' aged 17 years, resident of Chhaparwala-Pul. The application was rejected after full hearing and on consideration of the merits of the case. In the present application, the applicant is described as 'Daini @ Raju', aged 21 years, resident of Shinde-Ki-Chhaoni. However, the fact remains that the two are one and the same. 12. The learned Counsel for the applicant, when asked, submitted, that he had verified the fact to the best of his efforts and when he found that there was no previous application filed, he made this statement. He also submitted that the accused-applicant too had instructed him to say that the present one was his first application for bail, though such an instruction was not obtained in writing. 13. The facts of this case impel this Court once again to recall and read aloud what was said by Hon'ble Shri Justice K. K. Varma in Hart Mohan Dixit v. State of M.P. 1986 M.P.W.N. S.N. 58, and repeated with added emphasis in Suresh Mota Chenwala v. State of M. P. 1986 M.P.L.J. 659: It goes without saying that an Advocate drafts a bail petition on instructions from the applicant or through some one giving instructions on behalf of the applicant. A counsel who drafts the bail petition ought to take instructions preferably written instructions on the point whether any bail application is pending in the Court of Co-ordinate jurisdiction or not. In case he is unable to get any information on the point he ought to specifically mention that even on inquiry he had not been able to know anything about the matter. If such averments are lacking in the bail petition and then it comes to the notice of the Court that in fact there had been a pending bail petition in the Court of the Co-ordinate jurisdiction the counsel will certainly have to answer for the omission in the bail petition. If such averments are lacking in the bail petition and then it comes to the notice of the Court that in fact there had been a pending bail petition in the Court of the Co-ordinate jurisdiction the counsel will certainly have to answer for the omission in the bail petition. The abovesaid statement, at the cost of repetition has to be made because the rationale of Hari Mohan Dixit and Suresh Mota Chenwala has not yet reached where it ought to have been received. 14. Bail jurisdiction under the Criminal law is an extraordinary one. The jurisdictional provisions are to be found statutorily enacted in Sections 436 to 439 of the Code of Criminal Procedure, 1973 and at times in other enactments as well. However, what has been codified is a negligible part of the law, more or less relegated to theory only, while major part of the law, the law in practice, is totally unwritten. In bailable cases the bail is a matter of right. In non-bailable cases the bail is not a matter of right. There a call is made to the judicial discretion and conscience of the Court. The Court has to strike a balance between the right to liberty of the bail-applicant on one hand and the interests of the society at large, on the other. The Law Commission while revising the provisions as to bail, in its 41st Report, said: 39.1. The broad principles adopted in the Code in regard to bail are-(i) bail is a matter of right, if the offence is bailable; (ii) bail is a matter of discretion, if the offence is non-bailable; (iii) bail shall not be granted by the Magistrate if the offence is punishable with death or imprisonment for life; but if the accused is a woman, or a minor under the age of 16 years, or a sick or infirm person, the Court has a discretion to grant bail; (iv) the Court of Session and the High Court have a wider discretion in granting bail, even in respect of offences punishable with death or imprisonment for life. 15. Experience shows that discretion of a Judge while granting bail happens to be guided by several such considerations as would be totally irrelevant at the trial. Facts and circumstances, irrelevant and insignificant at the trial assume decisive role and significance at the hearing of bail petition. 15. Experience shows that discretion of a Judge while granting bail happens to be guided by several such considerations as would be totally irrelevant at the trial. Facts and circumstances, irrelevant and insignificant at the trial assume decisive role and significance at the hearing of bail petition. At times, the Courts are called upon to take into consideration such material as may not be on record strictly speaking, and at times such material as would never constitute legal evidence at the trial. Parts of Case Diary not available to the accused and incapable of consideration at the trial may be looked into by the Court in deciding a question as to grant of bail. Statements at Bar, sometimes incorporated in the order and sometimes not, nevertheless play a persuasive role. Not only the nature of accusation, the nature of evidence in support thereof, the severity of punishment which the conviction might entail, but even the character, behaviour, means and standing of the accused may have to be taken into consideration. The general interest of the State, the question of the interest of the society at large, law and order situation, etc. might have to be kept in view. The family condition and the family history of the applicant may be required to be assigned weight. In The State v. Captain Jagjit Singh AIR 1962 SC 253 , their Lordships of the Supreme Court summed up the various considerations while dealing with an application for bail in a non-bailable offence as: ...nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State and similar other considerations. (Emphasis supplied) In Gurucharan Singh and Ors. (Emphasis supplied) In Gurucharan Singh and Ors. v. State (Delhi Administration) AIR 1978 SC 179 , their Lordships observed: The overriding consideration in granting bail which are common both in the case of S. 437 (1) and S. 439 (1), are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice, of repeating the offences, of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which in view of so many variable factors, cannot be exhaustively set out. (Emphasis supplied) Again, in Babusingh and Ors. v. State of U. P. AIR 1978 SC 527 , their Lordships said that the purpose of bail is "bi-focul interests of justice to the individual involved and society affected." These decisions were referred to recently in a decision of this Court in Kalyansingh v. State of Madhya Pradesh 1988 MPLJ 759 . Let this all be summed up by borrowing from Hon'ble Shri Justice K.L. Shrivastava, what he said in Shantilal v. State of M. P. 1989 Cri. L.R. (MP) 3: ...a person accused of non-bailable offence cannot claim bail as of right and the question of grant of bail to such a person is left by the legislature in the Court's discretion to be exercised on a consideration of the totally of the facts and circumstances of a given case. The discretion has, of course, to be judicial one informed by tradition, methodized by analogy, disciplined by system and subordinated to the primordial necessity of order in social life. (Emphasis supplied) 16. Preface to the First Edition of Law of Bails by K.C. Mehrotra (Eastern Book Company) may provide an interesting reading and a thinking on lighter side to those who deal with bail matters: Law on bails, what nonsense". But I suppose it is not that nonsense. There is no occasion for a greater tension in a Court room than when an application is awaiting its fate-its refusal means good-bye to the lawyer who prays for grant of bail. A junior lawyer thinks that bails are allowed not to the accused but to the lawyer representing the client. But I suppose it is not that nonsense. There is no occasion for a greater tension in a Court room than when an application is awaiting its fate-its refusal means good-bye to the lawyer who prays for grant of bail. A junior lawyer thinks that bails are allowed not to the accused but to the lawyer representing the client. But if a senior member of the bar meets the same fate, he just shrugs his shoulder and tells his client that it is unfortunate that the presiding officer happens to be an executive judge. And if the bail has been allowed, the Government counsel will not spare the Judge-"Oh ! he is just trying to be popular with the Bar. 17. It is this false notion that has to be got rid of. Presumably for this, an anxiety is noticeable for developing a culture or laying down a Code of conduct through judicial pronouncements, for bail proceedings. In Shahzad Hasan Khan v. Ishtiaq Hasan Khan, AIR 1987 SC 1613 : 1987 (2) SCC 684 their Lordships of the Supreme Court considered it 'appropriate and desirable' (and also in keeping with the prevailing practice in the High Court) that a subsequent application for bail be placed before whom had come up the earlier application for bail. Their Lordships noticed "a long standing convention and judicial discipline" requiring a subsequent bail application to be placed before the Judge passing earlier order. Their Lordships observed: The convention that subsequent bail application should be placed before the same Judge who may have passed earlier orders has its roots in principle. It prevents abuse of process of Court in as much as an impression is not created that a litigant is shunning or selecting a Court depending on whether the Court is to his liking or not, and is encouraged to file successive applications without any new factor having cropped up. Obviously this intends to shoot at 'Bench-hunting' by bail-seekers. 18. It prevents abuse of process of Court in as much as an impression is not created that a litigant is shunning or selecting a Court depending on whether the Court is to his liking or not, and is encouraged to file successive applications without any new factor having cropped up. Obviously this intends to shoot at 'Bench-hunting' by bail-seekers. 18. In Ishwar v. State of M.P. 1989 (I) MPWN 54, Hon'ble Shri Justice V.D. Gyani observed: While recognising the right of an accused to bail, on grounds made out and to make as many attempts to that end as desired, without clogging this right in any manner, that least that is expected, is to make a frank and candid disclosure of facts either about dismissals of or simultaneous pendency of such petitions before different forums. It is certainly not desirable to go on bench-hunting by suppressing a very material fact of simultaneously pending application before the High Court as well as the Court of Sessions. It is not with a view to curtail the scope of bail by passing this order, but what is intended is, to invite attention of the Courts, to this unhealthy practice of suppression of material facts, at times indulged in, for obtaining bail orders, make simultaneous applications to the Court of Sessions as well as the High Court, which is all the more convenient at places having High Court seats. It is this practice which needs to be curbed.... All this cannot be done, and the Bail Judge would be left in lurch, if the parties do not provide material enabling the Court to arrive at a conclusion during a hearing which is summary in nature, requiring an immediate disposal, often by a short order, in the very nature of the function. All this casts a duty on the bail Petitioner and so too on the State, to make a faithful and true statement and disclosure of all the relevant facts and circumstances. In any case, a misstatement has to be avoided, at all costs. To put shortly, a bail petition is a matter of uberrima fides between an applicant and the Court. A breach thereof cannot be permitted nor tolerated. Else, it would permit a premium to be gained on one's own lapse from virtue. 19. The jurisdiction of High Court and Court of Session under Section 439 Cr. To put shortly, a bail petition is a matter of uberrima fides between an applicant and the Court. A breach thereof cannot be permitted nor tolerated. Else, it would permit a premium to be gained on one's own lapse from virtue. 19. The jurisdiction of High Court and Court of Session under Section 439 Cr. P. C. being concurrent, as a matter of practice, the bail applicants are required ordinarily to approach the Court of Session in the first instance and if relief is denied they approach the High Court Under Section 439 Cr. P. C. itself, not as a superior Court sitting in appellate or revisional jurisdiction over the order of the Court of Session, but because the superior Court can still exercise its own jurisdiction independently, unaffected by the result of exercise by the Court of Session because the latter is an inferior Court though vested with concurrent jurisdiction. The application seeking bail before the High Court is accompanied by an order of the Court of Session rejecting a similar prayer. The idea is to provide the superior Court with an advantage of apprising itself with the grounds and considerations which prevailed with the Court of Session in taking the view which it did. It has come to my notice in several cases that the first order of the Court of Session rejecting a prayer for bail, is a detailed order and when another application is repeated before the same Court, the subsequent order rejects the application simply by stating that earlier application having been rejected on merits, the Court did not see any reason to take a different view of the matter. The latter order is not a detailed one. This subsequent order is filed before the High Court to fulfil the formality, but the inevitable consequence is that the High Court is deprived of the opportunity of apprising itself with the reasons which formed foundation for rejection of the prayer by the Sessions Court. The possibility cannot be ruled out that such a course is adopted purposely because the bail-applicant does not feel comfortable before the High Court in the presence of a detailed order of the Court of Session rejecting the prayer for bail. 20. The possibility cannot be ruled out that such a course is adopted purposely because the bail-applicant does not feel comfortable before the High Court in the presence of a detailed order of the Court of Session rejecting the prayer for bail. 20. To sum up 'the disciplines of the system' are: (i) in view of the decision of the Apex Court in Shahzad Hasan Khan (supra), a subsequent application for bail in the same jurisdiction, must be placed before the same Judge (so long as he is available) before whom had come up the earlier application, with whatever result; (ii) a subsequent application for bail must mention all the earlier or pending attempts to that end made before the High Court as well as the Court of Session along with their fate; (iii) while moving an application for bail before the High Court, the application ought ordinarily to be accompanied by the order of the Court of Session rejecting the first prayer for bail and containing reasons, unless dispensed with; (iv) a bail petition is expected to incorporate a statement as to all facts and circumstances considered relevant by the applicant in support of his prayer so that whatever is putforth before the Court does not vanish in thin air, but is retained in the record, though there is no format prescribed for bail applications; if any statement is likely to be controverted by the opposite party, the party would do well to support its statement by an affidavit or documents, as advised. 21. A question may be posed whether these requirements falling within the domain of format or procedural requirements only, laying down rules of discipline only can be treated so imperative as to override the substantive law of bails, negativing the right or privilege for failure of compliance therewith. The requirements have a laudable purpose, principle and policy behind. They have been projected by judicial wisdom founded on judicial experience. The rightful result must be achieved by rightful means. That is the rule of law. If 'bi-focul interests of justice to the individual involved and the society affected' [as spoken of in Babusingh and Ors. The requirements have a laudable purpose, principle and policy behind. They have been projected by judicial wisdom founded on judicial experience. The rightful result must be achieved by rightful means. That is the rule of law. If 'bi-focul interests of justice to the individual involved and the society affected' [as spoken of in Babusingh and Ors. (supra)], are to be secured; if fallacies as to bail jurisdiction are to be removed; if fairness in dispensation of criminal justice has to be retained, nay brightened; if abuse of process of law is to be avoided; and if unwanted practice/tactics are to be curbed; these rules of discipline have to be treated as imperative. A failure to observe them may be destructive of the very purpose sought to be achieved. 22. The prayer for bail is rejected on consideration of merits of the case and also for a misstatement made in the petition in utter disregard for Hari Mohan Singh (supra).