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1992 DIGILAW 335 (PAT)

Prabhu Yadav, Prabhu Mukbia v. State Of Bihar

1992-09-15

S.H.S.ABIDI

body1992
Judgment S. H. S. Abidi, J. 1. Heard learned counsel for the parties for this third application for grant of bail. 2. The first application (Cr. Misc. No.1965/89) was dismissed on 31-5-1989 with the observation that : "after having considered all aspects of the matter I am not inclined to grant bail to the petitioner. I have refrained from giving any reason in this order because Mr. Shakil ahmad appearing on behalf of the petitioner, submitted that the same may prejudice the merit of the case of the petitioner. " 3. The petitioner again came to this Court for the same relief, in cr. Misc. No.9390/90 which was alse dismissed on 13-12-1990 by the same Bench after hearing the learned cousel for the the petitioner, and learned counsel for the informant and also the learned Advocate-General, with direction to the trial court for proceeding within two weeks on hearing frome the Superintendent of Police, Jehanabad who was to be informed about the date of hearing. 4. After the rejection of the second bail application the case proceeded and some witnesses appear to have been examined. Then the petitioner moved the learned Sessions Judge who also rejected the prayer observing : "the prayer for bail made earlier on behalf of this petitioner was rejected by the Sessions Court as well as by the Honble High Court. There is no doubt that Jagdish Paswan and Bhimal Paswan already examined as P. Ws.5 and 6 respectively have not mentioned the name of the petitioner in their evidence in regard to the alleged occurrence, but the learned Special Public Prosecutor points out that a large number of villagers mentioned in para 108 of the police case diary have claimed during the course of investigation that they heard about the participation of the petitioner also in the alleged crime from certain injured persons and eyewitnesses of the occurrence and that these villagers still remained to be examined in support of the prosecution case. The learned Special Public prosecutor vehemently opposes the prayer for bail made on behalf of the petitioner at this stage as certain material witnesses have yet to be examined in this case. " 5. It appears from the paragraph 10 of the second application for bail that the witnesses Jagdish Paswan, and Bhimal Paswan have sworn affidavit that none of them have named the petitioner before the police. " 5. It appears from the paragraph 10 of the second application for bail that the witnesses Jagdish Paswan, and Bhimal Paswan have sworn affidavit that none of them have named the petitioner before the police. This shows that the petitioner had been tampering with the prosecution evidence. The learned trial court has held that as stated by the learned p. P. , certain material witnesses are yet to be examined after the examination of P. Ws 5 and 6. As such, it cannot be said that there is no material against the petitioner in a case where sic persons including children have been brutally murdered. 6. However, the practice of the court below of entertaining the bail applications by the same accused after the rejection of his earlier application by the High Court is not to be appreciated. The court below cannot sit in review of revision against the order of the High Court and if this practice is allowed to prevail, it will undermine the dignity of the higher court. The judicial discipline must be strictly maintained. If someone has any ground for the grant of bail after the order of rejection has been passed, he must approach the very higher Court which had earlier rejected the application. That very Court will be well within jurisdiction to reconsider the matter again in the light of the new and further circumstances and will pass suitable and appropriate order. The trial court should not entertain an application for bail, even provissional bail, after th bail application has been rejected by the High Court. In a recent decision of the Supreme Court, in the case of Vikramjit Singh V/s. State of Mandhya pradesh, (1992 East Cr. C.447 (SC) where about an order of a bench in respect of an order of a bench of the same having co-ordinate jurisdiction, the Supreme Court has observed at page 449 (para 3) as follows ; "if the appellant had misused the bail or new material came to light, it would have been open to the presecution to move for cancellation, but that is not the position in the present case. On the basis of the same materials and in the same circumstances in which the order was earlier passed in favour of the appellant by the High Court, the application for cancellation was made entirely as a sequel of the observations made by Mr. On the basis of the same materials and in the same circumstances in which the order was earlier passed in favour of the appellant by the High Court, the application for cancellation was made entirely as a sequel of the observations made by Mr. Justice Gupta while dealing with the application of another accused. It must be, therefore, held that Mr. Justice gupta had no authority to upset the earlier order of the High court. That which could not be done directly could also not be done indirectly. Otherwise, party aggrieved by and order passed by one Bench of the High Court would be tempted to attempt to get, the matter re-opened before another Bench, and there would not be any end to such attempts. Besides, it was not consistent with the judicial discipline which must be maintained by Courts both in the interest of administration of justice by assuming the binding nature of an order which become final and the faith of the people in the judiciary. " 7. In this view of the matter, no case for grant of bail is made out and this third application is being rejected. Application rejected.