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2005 DIGILAW 458 (GAU)

Runu Roy v. State of Assam

2005-06-15

B.BISWAS, B.K.ROY

body2005
ORDER B.K. Roy, J. 1. Vide his order dated 26.5.2005, a learned Single Judge directed the office to place the records of B.A. No. 1365/2005 before one of us (Chief Justice) for constituting a larger Bench as after rejection of the earlier anticipatory bail application the instant application has been filed and this is a second application about which the learned Public Prosecutor, Assam in view of the decision of Anr. learned Single Judge in Utpal Sarma v. State of Assam 2004 (1) GLT 683 submitted that it is not maintainable. In B.A. 1412 of 2005 the same question is involved. That is how these two matters have come up before our Division Bench for considering the maintainability of the second anticipatory bail application. 2. The contention of Sri. B.K. Mahajan, the learned Counsel appearing on behalf of the Petitioner in B.A. No. 1365 of 2005 was that the second anticipatory bail application would be maintainable in view of the judgment of the Madhya Pradesh High Court in Imratial Vishwarkarma v. State of M.P. (1997) 1 Crimes 289(M.P.), whereas according to Mr. Musahary, the learned Public Prosecutor, Assam, it would not be maintainable in view of the judgment of our own High Court in Utpal Sarma (supra) which has followed the decision of the Full Bench of the Calcutta High Court in Maya Rani Guin v. State of West Bengal 2003 Cri L.J. 1. 3. The Code of Criminal Procedure (hereinafter referred to as 'the Code') envisages grant of bail by the High Court under following three Sections: (i) Before arrest of the accused under Section 438 of 'the Code', which reads as under: 438. Direction for grant of bail to person apprehending arrest (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for direction under this section; and that Court may, it is thinks fit, direct that in the event of such arrest, he shall be released on bail. (2) When the High Court or the Court of Session makes a direction under Sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including- (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such other condition as may be imposed under Sub-section (3) of Section 437, as if the bail were granted under that section. 3. If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-section (1). (ii) After arrest of the accused under Section 439 of 'the Code', which reads as under: 439. Special powers of High Court of Court of Session regarding bail. a. A High Court or Court of Session may direct i. that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in Sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that Sub-section; ii. a. A High Court or Court of Session may direct i. that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in Sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that Sub-section; ii. that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. (2) A High Court of Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. (iii) After conviction of the accused under Section 389 of 'the Code' which reads as under: 389. Suspension of sentence pending the appeal; release of Appellant on bail-(1) Pending any appeal by a convicted person, the Appellate Court may, for reason to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. a. The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by convicted person to a Court subordinate thereto. a. The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by convicted person to a Court subordinate thereto. b. Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,- (i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or (ii) Where the offence of which such person has been convicted is a bailable one, and he is on bail, Order that the convicted person be released on bail unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under Sub-section (1), and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended. (4) When the Appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced. 4. Obviously, none of these Sections prohibit filing of second application after rejection or withdrawal of the earlier one like Section 397(3) of the Code in relation to exercise of revisional power under Section 397(1) of the Code that no further application by the same person shall be entertained after making of the earlier application. 5. Section 362 of the Code, which prevents the Court from not altering its judgment, reads as under: 362. Court not to alter judgment.-Save as otherwise provided by this Code or by any other law for the time being in force, no Court when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. 5.1. Obviously, the legislature means that once a judgment or final order disposing a case is signed by a Court, save as otherwise provided it shall not alter or review the said judgment or final order except to correct a clerical or an arithmetical error. 5.2. The phraseology "disposing of a case" has got some relevance inasmuch as the definition clause as contained in Section 2 defines under Sub-section (W) "summons case" and under Sub-section X as "warrant case". 5.3. 5.2. The phraseology "disposing of a case" has got some relevance inasmuch as the definition clause as contained in Section 2 defines under Sub-section (W) "summons case" and under Sub-section X as "warrant case". 5.3. By no stretch of imagination we can construe that an order rejecting the prayer for grant of bail under the aforementioned three provisions amounts to judgment. 6. In Babu Singh v. State of U.P. AIR 1978 SC 527 , the Apex Court had held as follows: But an order refusing an application for bail does not necessarily preclude Anr., on a later occasion, giving more materials, further developments and different considerations. While we surely must set store by this circumstance, we cannot accede to the faint plea that we are barred from second consideration at a later stage. An interim direction is no a conclusive adjudication, and updated reconsideration is not overturning an earlier negation. In this view, we entertain the application and evaluate the merits pro and con. (Emphasis supplied) 6.1. In view of this declaration of law by the Apex Court, which is binding on us in view of Article 141of the Constitution, it cannot be baldly held that the second application for bail cannot be maintainable. 7. In Dal Chand and Ors. v. State of U.P. 2000 Cri L.J. 4579 a Division Bench of the Allahabad High Court speaking through G.P. Mathur, J (now of the Apex Court) had held as follows: There can be no dispute that the order passed on a bail application is an interlocutory order and cannot be said to be judgment or final order disposing of a case. X X X There is no other provision in the Code which may create a bar against maintainability of second bail application and consequently the statutory provisions of the Code of Criminal Procedure do not at all create a bar in entertaining a second bail application at the instance of a convicted accused in an appeal. 5. The learned single Judge while making the reference has observed that "it is no longer in dispute that plea of constructive res judicata are applicable to the criminal proceedings also" and on its basis was of the opinion that the second bail application is barred. 5. The learned single Judge while making the reference has observed that "it is no longer in dispute that plea of constructive res judicata are applicable to the criminal proceedings also" and on its basis was of the opinion that the second bail application is barred. Res Judicata has been defined in Section11 of the Code of Civil Procedure it lays down that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The provision of res judicata as defined in Section 11 of Code of Civil Procedure can have no application in a criminal trial or appeal. However, that does not mean that the findings recorded in an earlier trial for criminal offence are not sacrosanct or that they can be reopened. The rule which is applicable to a criminal trial is a rule of "issue estoppel" as contained in Section 300, Code of Criminal Procedure. (old Section 403). This rule was explained by a Constitution Bench in Manipur Administration v. Hokchom Bira Singh AIR 1965 SC 87 , in following words: The rule of issue estoppel in a criminal trial is that where an issue of fact has been tried by a competent Court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of Section 403(2). The rule is not the same as the plea of double jeopardy or autrefois acquit. The rule is not the same as the plea of double jeopardy or autrefois acquit. The rule does not prevent the trial of any offence as does autrefois acquit but only precludes evidence being led to prove a fact in issue as regards which evidence has already been led and specific finding recorded at an earlier criminal trial before a Court of competent jurisdiction. The rule thus relates only to the admissibility of evidence which is designed to upset finding of fact recorded by a competent Court at a previous trial. 6. The same principle was reiterated in State of A.P. v. Kokkiligada AIR 1970 SC 771 : (1970 Cri. LJ 759) and Lalta v. State of U.P. AIR 1970 SC 1381 : 1970 Cri. LJ 1270. The principle of "issue estoppel" does not prevent the trial of any offence but only precludes evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding has been recorded at an earlier criminal trial before a Court of competent jurisdiction. The principle of "issue estoppel" can have no application to a hearing of a second bail application as no finding of fact touching any of the issues involved in the appeal is recorded while hearing first bail application nor in the second bail application any evidence is sought to be adduced to disturb any such finding. Therefore, there is no such principle of criminal jurisprudence which may create a bar against the maintainability of a second bail application. 8. The Rajasthan High Court in Gheesya v. State of Rajasthan (1989) 1 Crimes 524 laid down that second application would be maintainable. 9. In Gandhi v. State of Andhra Pradesh (1991) 3 Crimes 796, the Andhra Pradesh High Court held that a second application for anticipatory bail is not barred. 10. A Division Bench of the Madhya Pradesh High Court in Imratial Vishwakarma v. State of M.P. (1997) 1 Crimes 289 (M.P.), relied upon by the learned Counsel for the Petitioner, has held that the second application under Section 438 Code of Criminal Procedure would be maintainable. In Yuvraj Gaud v. State of Madhya Pradesh and Anr. 2004 CRI. 10. A Division Bench of the Madhya Pradesh High Court in Imratial Vishwakarma v. State of M.P. (1997) 1 Crimes 289 (M.P.), relied upon by the learned Counsel for the Petitioner, has held that the second application under Section 438 Code of Criminal Procedure would be maintainable. In Yuvraj Gaud v. State of Madhya Pradesh and Anr. 2004 CRI. L.J. 4576 the Madhya Pradesh High Court examined this question again and answered in the affirmative, which will appear from the following observations made in paragraph 9 of its order: The Court after considering the various decisions has held that the second application for anticipatory bail under Section 438 Code of Criminal Procedure is maintainable. The second application filed under Section 438 Code of Criminal Procedure has to be decided on its merits even if earlier application was also dismissed on merits. No such fetters can be put or applied on the second petition that it can only be considered when it was withdrawn, or was rejected having been not pressed. It shall, however, be open for the Court to reject it even summarily on the ground that the said second petition is nothing but a repetition of the earlier petition and no new ground has been disclosed in the second petition. 11. Similar view has been taken by the Madras High Court in Radhakrishnan alias R.K. v. The State and Anr. 2003 Cri L.J. 4167. 12. In Babubhai Bachubhai Bhabhor v. State of Gujarat 2005 Cri L.J. 1618. Full Bench of the Gujarat High Court, has held as follows: 10. Even in cases where the earlier application for anticipatory bail filed under Section 438 of the Code of Criminal Procedure is rejected, Similar repeated application under Section 438 will have to be placed before the same Bench that passed the earlier order. (Emphasis supplied) Thus, it is clear that a subsequent anticipatory bail application would be maintainable but has to be placed before the same Hon'ble Judge who had disposed of the earlier one, of course subject to his availability. 13. (Emphasis supplied) Thus, it is clear that a subsequent anticipatory bail application would be maintainable but has to be placed before the same Hon'ble Judge who had disposed of the earlier one, of course subject to his availability. 13. Now we come to the decision of a learned Single Judge of our High Court in Utpal Sarma v. State of Assam 2004 (1) GLT 683 who following the Full Bench decision of the Calcutta High Court in Maya Rani Guin v. State of West Bengal 2003 Cri L.J. 1, has held that the second application for grant of anticipatory would not be maintainable. His view that the earlier order rejecting the prayer for grant of anticipatory bail gets finality and would be covered by the provision of Section 362 of the Code, with great respect is in the teeth of the ratio laid down by the Apex Court in Babu Singh (Supra). Anticipatory bail or regular bails are granted after considering not only the accusations made against an accused but many other facts and circumstances. Thus, it is not possible for us to concur with the view taken by the Full Bench of the Calcutta High Court rather we agree with the views taken by the High Courts of Allahabad, Rajasthan, Andhra Pradesh, Madhya Pradesh and Gujarat referred to earlier. 14. Accordingly, we hold that within the parameters set forth by the Apex Court in Babu Singh (Supra) which would also apply to the applications filed under Sections 438 and 439 of the Code a second application under Section 438 Code of Criminal Procedure would be maintainable and constrained to overrule the view taken by the learned Single Judge in Utpal Sarma (Supra). 15. Let now these two cases be listed before the Hon'ble Judge who had disposed of the earlier anticipatory bail application of the Petitioner.