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Madhya Pradesh High Court · body

1998 DIGILAW 597 (MP)

State of M. P. v. Anandram

1998-08-14

S.B.SAKRIKAR

body1998
ORDER 1. This M.Cr.C. is registered on the orders of the Honourable The Chief Justice by way of Reference for answering the questions raised by Honourable Justice Shri N.K. Jain, the Portfolio Judge of Shajapur District on the judicial side. 2. Briefly stated the facts of the case are that Shri G.S. Rathore, Additional Sessions Judge is designated and appointed as Special Judge under the provisions of Sec. 14 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 under the notification issued by the State Government for District Shajapur, that on 24.6.98 in absence of the Sessions Judge Shajapur, dismissed certain bail applications filed on behalf of the accused applicants u/S. 439 CrPC. Subsequently, the applications by the same accused persons were filed before the Sessions Court Shajapur. The learned Sessions Judge transferred the subsequent bail application to Additional Sessions Judge Shri Rathore for disposal according to law. The learned Addl. Sessions Judge Shri Rathore, declined to consider the said applications made over to him by the Sessions Judge on the ground that the earlier applications were decided by him in the capacity as In charge Sessions Judge, Shajapur and therefore, the subsequent applications should be heard only by the Sessions Judge. He also declined to entertain the bail applications made over to him on the ground that as he is a Special Judge appointed and designated under the provisions of SC and ST Act and under the instructions of the High Court, the Sessions Judge can only transfer Sessions cases to him not the bail applications. Shri G.S. Rathore with the aforesaid observations returned the subsequent bail applications again to the Sessions Judge, Shajapur. Thereafter the learned Sessions Judge Shajapur, in view of the decisions of the Apex Court in case of Shahzad Hasan Khan v. Ishitaq Hasan Khan and another ( AIR 1987 SC 1613 ) and the Full Bench decision of this Court in case of Narayan Prasad v. State of Madhya Pradesh ( 1993 JLJ 225 = 1993 MPLJ 1) referred the matter to the Main Registry of this Court for guidance and the copy was sent to the Honourable Porto-folio Judge of the concerned district. On receipt of the letter from the Sessions Judge, Shajapur, Hon'ble the Portfolio Judge of Shajapur District requested the Hon'ble Chief Justice to Refer the matter to be dealt with on judicial side for answering the following questions arise for decision in the case :-- (i) Where in the event of absence of the Sessions Judge, an application for bail is heard and rejected by an Addl. Sessions Judge, whether subsequent application for bail by the same accused should go before the Addl. Sessions Judge, if he is available or it should be heard by the Sessions Judge himself and, (ii) Whether the Addl. Sessions Judge can refuse to hear such an application made over to him by the Sessions Judge in exercise of his power under Section 10(3) CrPC. 3. The matter in controversy arose before the Apex Court in case of Shahzad Hasan Khan v. Ishitaq Hasan Khan and another (supra), the Apex Court in the aforesaid case, while dealing with the matter in controversy has held that :-- "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 inasmuch 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. If successive bail applications on the same subject are permitted to be disposed of by different Judges there would be conflicting orders and a litigant would be pestering every judge till he gets an order to his liking resulting in the credibility of the Court and the confidence of the other side being put in issue and there would be wastage of Courts time. Judicial discipline requires that such matter must be placed before the same Judge, if he is available for orders." 4. Relying on the decision of the Apex Court, the Full Bench of this Court in case of Narayan Prasad v. State of Madhya Pradesh (supra) has taken the same view and held that :- "If the earlier bail application is rejected by one Judge the successive bail applications should be placed before the same Judge or the bench passing earlier order subject to its availability". The Court also held that :- "There is no law or any statutory rule making it obligatory that all subsequent bail applications should be placed before the same Bench or Judge who passed ealier orders but it is only a rule of convenience based on judicial discipline, developed by a long standing convention." 5. In view of the aforesaid decision of the Apex Court and the Full Bench of this Court, it is imperative that once the bail application filed by an accused is heard and decided by a particular Judge or the Bench, the susequent applications filed by the same accused should be placed before the same Judge or Bench passing earlier order subject to availability. In the present case, it is not disputed that the previous bail application was decided by Add!. Sessions Judge and Special Judge, Shri Rathore in absence of the Sessions Judge in the capacity of an Acting Sessions Judge. As such, the subsequent bail application filed by the same accused is required to be placed before Shri Rathore for disposal as Shri Rathore was available in the same district and was competent to dispose of the subsequent bail applications made over to him for disposal. On perusal of the decision of the Apex Court in case of Shahzad Hasan Khan (supra) and the Full Bench Decision of this Court in case of Narayan Prasad (supra), it is apparent that in both the aforesaid cases the Courts ruled that the subsequent bail applications should be placed before the same Judge or Bench and not before the same Court. 6. In view of the aforesaid position of law, it is incorrect to say that as the previous application of the applicant-accused was decided by Shri G.S. Rathore in the capacity as In charge Sessions Judge, the subsequent application should be decided by the Sessions Judge himself. 7. 6. In view of the aforesaid position of law, it is incorrect to say that as the previous application of the applicant-accused was decided by Shri G.S. Rathore in the capacity as In charge Sessions Judge, the subsequent application should be decided by the Sessions Judge himself. 7. With regard to the other question referred for decision, the provisions of Sec. 10(3), 194 and 400 CrPC are relevant and for convenience the said provisions contained in the Code are reproduced as under :-Section 10(3): "The Sessions Judge may also make provisions for the disposal of any urgent application, in the event of his absence or inability to act, by an additional or Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions Judge, by the Chief Judicial Magistrate and every such Judge or Magistrate shall be deemed to have jurisdiction to deal with any such application. Section 194: "Additional and Assistant Sessions Judges to try cases made over to him An Additional Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge of the division may by general or special order make over to him for trial or as the High Court may, by special orders direct him to try. Section 400 : "Power of Additional Session Judge -- An Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under this Chapter in respect of any case which may be transferred to him by or under any general or special order of the Sessions Judge". 8. On considering the cumulative effect of the aforesaid provisions, it emerged that the Sessions Judge is competent to make provisions for the disposal of any urgent application in the event of his absence or inability to act by an Additional or Assistant Sessions Judge posted in the Sessions Division, Under Section 194 CrPC an Additional Sessions Judge or Assistant Sessions Judge is under the obligation to try such cases as the Sessions Judge of the Division may be general or special order make over to him for trial. Under Section 400 CrPC an Additional Sessions Judge shall exercise all the powers of a Sessions Judge in respect of any case which is transferred to him by or under any general or special order of the Sessions Judge. 9. Under Section 400 CrPC an Additional Sessions Judge shall exercise all the powers of a Sessions Judge in respect of any case which is transferred to him by or under any general or special order of the Sessions Judge. 9. In the present case, on a particular date, in absence of the Sessions Judge, Addl. Sessions Judge Shri G.S. Rathore by virtue of Section 10(3) of the Code exercised the powers of the Sessions Judge and decided the disputed hail applications. On presentation of the subsequent bail application by the same accused, the Sessions Judge in exercise of the power u/S. 194 of the Code made over such applications to Addl. Sessions Judge Shri Rathore for disposal in accordance with law. In Sec. 194 it is stated that an Additional Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge by general or special order make over to him for trial. It is not disputed that Shri Rathore although designated as Special Judge under the provisions of SC & ST Act, his status under the provisions of the CrPC remains that of an Addl. Sessions Judge appointed under Sec. 9(3) of the CrPC. As such, the Addl. Sessions Judge posted in a Sessions Division cannot refuse to hear and decide the criminal cases, appeals and applications placed before him for disposal u/S. 10(3) of the Code or make over to him by the Sessions Judge u/S. 194 of the CrPC. It is also apparent that the D.O. No. 1415 /Confidential dated 3rd September 1996 and D.O. No. 133/Confidential dated 25th January 1996 issued by the Registrar of this Court empowered the Sessions Judge to transfer the Sessions cases for disposal to the Judge of the Special Court designated under the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act. 1989. Needless to say that the transfer of a Sessions trial also includes transfer of Interlocutory Applications including the bail applications riled before the Sessions Judge of the said Sessions Division. 10. As a result of the foregoing discussions, the questions No. one and two referred for decision are answered as under :-- 11. Answer to Question Number One: "In the event of absence of the Sessions Judge if an application for bail is heard and rejected by an Addl. 10. As a result of the foregoing discussions, the questions No. one and two referred for decision are answered as under :-- 11. Answer to Question Number One: "In the event of absence of the Sessions Judge if an application for bail is heard and rejected by an Addl. Session Judge in the capacity as In charge Sessions Judge, then, the subsequent application for bail, by the same accused should be placed before the same Addl. Sessions Judge, if he is available in the said Sessions Division and cannot be heard by the Sessions Judge himself." 12. Answer to Question Number Two : "The Additional Sessions Judge posted in the Sessions Division cannot refuse to hear an application placed before him u/S. 10(3) or made over to him by the Sessions Judge for disposal". 13. The questions referred to the Court for decision are answered as indicated above. 14. Before parting with the case, I extend my thanks and appreciate the assistance extended by the learned Government Advocate Shri G. Desai and Shri H.S. Oberoi, learned Sr. Counsel who at the request of the Court acted as Amicus Curiae and helped the Court in answering the questions referred for decision.