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2006 DIGILAW 378 (MP)

Rajendra Marar. v. State of M. P.

2006-03-10

K.K.LAHOTI, S.L.JAIN

body2006
Judgment ( 1. ) APPELLANT No. 1 Rajendra Marar has filed an application under Section 389 of Code of Criminal Procedure, 1973 (hereinafter referred to as code for short) for suspension of execution of sentence and release on bail. ( 2. ) IT is stated that appellant is in jail since last 10 years. In Para 8 of the application it is stated that this is a repeat application for grant of bail. In the application, applicant/appellant has not stated how many applications filed by the appellant were considered by this Court, whether those applications were considered on merits or not, whether those applications were pressed or not, and what transpired to those application does not reflect from the applications. This Special Bench is sitting of hearing repeat bail applications as per the pronouncement of Full Bench of this Court in Gopal and Ors. v. State of M. P. reported in 2004 (4) M. P. H. T. 195, wherein the Full Bench considering a right of an accused/appellant to make successive applications for suspension of execution of sentence and for grant of bail held thus: 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 Honble 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 detre 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 be 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. These are the underlying objects or principles on which the convention is founded. In the year 1987 it was described to be 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. It has been pointed out by Shri S. C. Datt, 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 Anr. 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 Judges 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 rosier 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 Buddhikotas case referred above) while sitting with the other Judge. 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 Buddhikotas 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. 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 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 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 . ( 3. ) FROM the perusal of record it appears that appellant Rajendra Marar has filed various applications in the past, but this fact does not find place in the application itself. To ascertain what transpired to the previous applications, whether they were considered on merits or not, or simply were got dismissed as not pressed or were dismissed because of non- appearance of the Counsel, everything is to be seen while deciding successive applications, in the same case on behalf of same appellant. Apart from this if the appellant had filed Special Leave Petition before the Supreme Court against the dismissal of any previous application, this fact also deserves to be disclosed in the application itself. The Apex Court in Kalyan Chandra Sarkar v. Rajendra Ranjan alias Pappu Yadav and Anr. 2004 AIR SCW 1581 considering the law held thus: Before concluding we must note 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 the impugned order we do not see any such fresh ground recorded by the High Court while granting bail. It also failed to take into consideration that at least on four occasions order refusing bail has been affirmed by this Court and subsequently when the High Court did grant bail, this Court by its order dated 26th July, 2000 cancelled the said bail by a reasoned order. From the impugned order, we do not notice any indication of the fact that the High Court took note of the grounds which persuaded this Court to cancel the bail. From the impugned order, we do not notice any indication of the fact that the High Court took note of the grounds which persuaded this Court to cancel the bail. Such approach of the High Court, in our opinion, is violative of the principle of binding nature of judgments of Superior Court rendered in a lis between the same parties, and in effect tends to ignore and thereby render ineffective the principles enunciated therein which have a binding character. ( 4. ) THIS Court is hearing similar type of applications, which were rejected in the past because of any reason and one among us (Justice S. L. Jain) was party to the previous applications, but all this deserves to be disclosed by the appellant, who is filing successive application in the same appeal so that entire picture at a glance may come to the notice of the Bench while deciding the application and any possibility of error may be ruled out. Apart from this, if any application had not been considered by the Bench as per the law laid down the Full Bench Gopal (supra), the matter is to be placed before the appropriate bench and not before the Special Bench. ( 5. ) FROM our experience while hearing similar type of applications, we find that aforesaid facts are not disclosed in the application. Merely by writing repeat application or mentioning its number will not be sufficient to ascertain the correct factual position. The applicant/appellant should have disclosed all the facts truly and correctly in the application itself. As the High Court Rules are silent in this regard, it will be appropriate to issue certain directions so that the aforesaid facts may come into the notice of the Court while deciding the application and in case if any fact is suppressed or wrongly stated, it may be pointed out by the State at the time of hearing or the Bench may also treat it a negative point and consider adversely against the applicant while deciding the application. ( 6. ) THOUGH it is correct that accused/appellant is having a right to make successive applications for grant of bail and the Court entertaining such subsequent applications has a duty to consider the application on merits, but while considering the successive applications the Court is also duty bound to go through reasons and grounds on which the earlier applications were considered. ) THOUGH it is correct that accused/appellant is having a right to make successive applications for grant of bail and the Court entertaining such subsequent applications has a duty to consider the application on merits, but while considering the successive applications the Court is also duty bound to go through reasons and grounds on which the earlier applications were considered. In case any application is considered by the Apex Court and subsequently when the High Court is moved for the same relief, the Court is under obligation to take note of the grounds which persuaded the Apex Court to cancel the bail on earlier occasions. In absence of provisions in the Rules, it will be appropriate to issue certain directions so that a complete justice may be done in the matter and the Court while considering the application should be made aware at a glance in respect of past history of previous applications, filed in the matter in respect of same applicant/appellant. Needless to say it will also save a lot of the time of the Court while considering the application of accused/appellants. ( 7. ) CONSEQUENTLY, following directions are issued: (1) The applicant/appellant who is filing an application under Section 389 of the Code for suspension of execution of sentence and for grant of hail, in the cause title of application shall disclose following facts: (i) Whether the applicant had filed any application for suspension of sentence before the Apex Court, subsequently when the High Court did not grant bail and all the particulars of the aforesaid application of Special Leave petition. The applicant/appellant as far as possible, either shall file copy of order passed by the Apex Court or shall give details of the order passed by the Apex Court. (ii) The applicant/appellant shall disclose how many applications he has filed in the past, their numbers, date of filing of application, date of decision, which Bench heard the matter specifying the name of Honble Judges who have heard the previous application and result of previous application in brief. This information shall be given in chronological order so that at a glance it may come into the notice of the Bench the entire history, in brief in respect of previous applications. (2) The aforesaid order be complied with forthwith. Any information incorrectly submitted or suppressed shall be taken into consideration by the Bench hearing the aforesaid application. This information shall be given in chronological order so that at a glance it may come into the notice of the Bench the entire history, in brief in respect of previous applications. (2) The aforesaid order be complied with forthwith. Any information incorrectly submitted or suppressed shall be taken into consideration by the Bench hearing the aforesaid application. (3) A copy of this order be sent to the High Court Bar Association for information to the Members of the Bar. (4) The office shall insist for compliance of the aforesaid directions and in case of non-compliance of directions the matter be placed before the concerned Registrar, in default. The office before placing the application for hearing shall verity the aforesaid facts from the record .