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2004 DIGILAW 775 (MP)

Gopal v. State of M. P.

2004-09-20

AJIT SINGH, S.K.PANDE, S.P.KHARE

body2004
ORDER Khare, J. -- 1. The following two questions have been referred to this Bench : (a) When a first application for bail preferred in a pending appeal under section 389(1) of the Code has been considered by a Bench and faced rejection and thereafter the second bail application is filed and due to the non-availability of earlier Bench, a second Division Bench deals with the matter and rejects the bail application, the successive and subsequent applications should go before the said Bench or should be listed before the Bench that has been given the roster to deal with such matter? (b) If the first application for bail has been preferred under section 389 of the Code and has been rejected by a Bench and if one of the members is available, whet)1er the subsequent application should be listed before a Bench of which he is a member or should it go before a regular Bench ? 2. The facts relevant for decision of the questions referred above are that the application under section 389(1), CrPC for suspension of sentence and grant of bail was rejected by a Division Bench of this Court on 17.4.1999. The two learned Judges who constituted the Bench are not available now as they have retired. Again, three successive applications seeking the same relief were rejected by a Division Bench of which one of the members is available and the other has retired. Undaunted by earlier retreats, two more applications were made one after the other and these were rejected by a Division Bench of which both the members are available. One of the Judges of this Division Bench was also a member of the Division Bench by which the application was rejected thrice as stated hereinbefore. On 20.8.2004 a direction was given by the latter Division Bench to list the fresh application claiming the same relief before "an appropriate Division Bench". It was then listed before a Division Bench as per current roster. This Division Bench was in a "dilemma" whether it can entertain such application when the Judges or one of the Judges who constituted the earlier Division Benches to deal with the application are available and therefore the matter was referred to Hon'ble the Chief Justice who, by his order dated 14.9.2004, has constituted the Full Bench to answer the questions referred above. 3. 3. We have heard the learned Counsel for the appellants and the Additional Advocate General on behalf of the State. We requested Shri S.C. Datt, Senior Advocate to assist as amicus curiae in deciding the procedural tangle. We have heard him also. 4. Three decisions of the Supreme Court and two Full Bench decisions of this Court should be noticed which serve as a beacon beam and throw amber light to decide the questions referred to us. 5. In Shahzad Hasan Khan v. Ishtiaq Hasan Khan [ AIR 1987 SC 1613 ], it has been held that long standing convention and judicial discipline required that the subsequent bail application should have been placed before the same Judge who had passed the earlier orders and who was available. 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 Court time. Judicial discipline requires that such matter must be placed before the same Judge, if he is available for orders. 6. Two years later in State of Maharashtra v. Buddhikota Subha Rao [ AIR 1989 SC 2292 ] the Supreme Court reiterated that in such a situation the proper course is to direct that the matter be placed before the same learned Judge who disposed of the earlier applications. Such a practice or convention would prevent abuse of the process of the Court inasmuch as it will prevent an impression being created that a litigant is avoiding or selecting a Court to secure an order to his liking. Such a practice would also discourage the filing of successive bail applications without change of circumstances. Such a practice or convention would prevent abuse of the process of the Court inasmuch as it will prevent an impression being created that a litigant is avoiding or selecting a Court to secure an order to his liking. Such a practice would also discourage the filing of successive bail applications without change of circumstances. Such a practice if adopted would be conducive to judicial discipline and would also save the Court's time as a Judge familiar with the facts would be able to dispose of the subsequent application with despatch. It will also result in consistency. 7. Recently in Harjeet Singh v. State of Punjab [ AIR 2002 SC 281 ], also following the earlier precedents it has been held that an application for cancellation of the bail should be placed before the same Judge who has granted the bail earlier. 8. A Full Bench of this Court in Narayan Prasad v. State of M.P. [ 1993 JLJ 225 = 1993 MPLJ 1] has observed 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 earlier orders but it is only a rule of convenience based' on judicial discipline, developed by a long standing convention. The main purpose and object behind it is to prevent abuse of the process of Court, avoidance of an opportunity to an accused or appellant to select any Court or Bench of his choice to make successive application for bail, to avoid delay and conflicting orders by different Judges on the same subject-matter and to discourage a litigant from pestering every Judge till he gets an order of his liking affecting the credibility of the Court and the confidence of the other side. It is for these reasons that the judicial discipline demands that the subsequent bail application should be placed before the same Judge who passed the earlier orders provided he is available. 9. It is for these reasons that the judicial discipline demands that the subsequent bail application should be placed before the same Judge who passed the earlier orders provided he is available. 9. Another Full Bench of this Court in Salltosh v. State of M.P. [ 2000(1) JLJ 240 = 2000(1) MPLJ 354 ], has held that the second or successive bail applications in a pending appeal or bail application under section 439 of the Criminal Procedure Code should be considered by the Bench which has considered the first bail application unless the Bench which decided the earlier application, is not available for a sufficient duration. 10. In the present case, as mentioned above the two Judges who dealt with the bail application for the first time have retired. One of the Hon 'ble Judges comprising the Bench which' decided the three successive applications is at present available and both the Judges of the Division Bench who decided the last two applications are also available. From the judicial precedents referred above the raison d' etre for the rule that the repeat bail application should be placed before the Judge or the Judges who have decided the earlier application are (a) prevention of abuse of the process of the Court, (b) avoidance of conflicting decisions, (c) judicial discipline, and (d) a Judge or the Judges familiar with the facts would be able to dispose of the subsequent application with despatch. These are the underlying objects or principles on which the convention is founded. In the year 1987 it was described to the 'long standing convention' and since then seventeen more years have passed and in view of the reiteration of the same rule in subsequent authoritative precedents it can be held that it has hardened into a rule of law. 11. It has been pointed out by Shri S.C. Datta, Senior Advocate that strict adherence to the aforesaid rule is leading to inconvenience and dislocation of work and, therefore, it is suggested by him that it should be modified to the extent that if one of the Judges constituting the earlier Division Bench which dealt with the bail application of the same person is not available then the application should be listed before the regular Bench as per current roster. On the other hand it is argued by the learned Additional Advocate General that the acceptance of this argument would amount to deviation from the well settled convention approved by various judicial decisions referred above. In our considered opinion that contention of the Additional Advocate General should be accepted keeping in view the principle enunciated in the above cases. If the Judges of the first Division Bench are not available and another Division Bench deals with the application and rejects it this latter Division Bench for all practical purposes becomes the Division Bench before which the matter was placed earlier and any subsequent bail application should •be listed before the same Division Bench and not before the Division Bench comprising of different Judges under the current roster. As a logical extension of this rule or premise, if one of the Judge of the Division Bench rejecting the earlier application is available then for consideration of the repeat bail application he should be a member of the Division Bench to be constituted to deal with such application and it should not be listed before a Division Bench .as per roster comprising of different Judges. A Judge of the Division Bench who has heard the same matter earlier would be "familiar with the facts and would be able to dispose of the second application with despatch" (within the meaning of the words used in Buddhikota's case referred above) while sitting with the other Judge. Recently in Kalyan Chandra Sarkar v. Rajesh Ranjan, 2004 AIR SCW 1581, the Supreme Court has held that though an accused has a right to make successive applications for grant of bail the Court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the Court also has a duty to record what are the fresh grounds which persuade it to take a view different from the one taken in the earlier applications. In view of this dictum of the Supreme Court it is all the more necessary that the subsequent bail application should be listed before the Judge or the Judges who rejected the earlier application. In view of this dictum of the Supreme Court it is all the more necessary that the subsequent bail application should be listed before the Judge or the Judges who rejected the earlier application. If a Judge who has been a member of the Division Bench which rejected the earlier bail application is also a member of the subsequent Division ,Bench then the latter Bench would be in a better position to consider the reasons and grounds on which the earlier bail applications were rejected and also to record the fresh grounds which persuade it to take a view different from the one taken in the earlier applications. We accordingly answer to the questions referred to us as under: (a) When a first application for bail preferred in a pending appeal under section 389(1) of the Code has been considered by a Division Bench and faced rejection and thereafter the second bail application is filed and due to the non-availability of earlier Division Bench, a second Division Bench deals with the matter and rejects the application, the other successive and subsequent bail applications should go before the said Bench and not before the Bench that has been given the roster to deal wit~ such matter. (b) If the first application for bail has been preferred under section 389 of the Code and has been rejected by a Bench and if one of the members of the Bench is available, the subsequent bail applications should be listed before a Bench of which he is a member and it should not go before the regular Bench as per roster. 12. In the present case the two Honourable Judges constituting the Division Bench and rejecting the bail applications on 20.11.2003 and 2.12.2003 are available and therefore, the fresh bail application should be listed before the same Division Bench.