Research › Search › Judgment

Jharkhand High Court · body

2009 DIGILAW 1646 (JHR)

Twinkle Soni v. State of Jharkhand

2009-12-23

D.N.PATEL, PRADEEP KUMAR

body2009
JUDGMENT D.N. PATEL, J. (1) BOTH these bail applications have been placed before this Division Bench mainly for the reason that this Court has decided in Bail Application No. 6102 of 2009 vide order dated 2nd September, 2009 that the petitioner seeking bail even earlier rejected by this Court has to approach the Sessions Court, whereas in a Bail Application No. 6813 of 2009, vide order dated 10th October, 2009, it has been held by this Court that there is no need for the petitioner, seeking bail, to approach the Sessions Court, even after the bail application, is rejected by this Court and such defect which was pointed out by the Registry of this Court was ignored and therefore, these bail applications have been referred to the Division Bench of this Court on the following issues : "Whether for filing a bail application before this Court, is it necessary for the petitioner to move before the trial Court for his bail again when his bail application was rejected earlier by the Hon'ble Court?" (2) WE have heard learned counsel for the petitioners, who has submitted that looking to the provisions of Section 439 of the Code of Criminal Procedure, 1973, it is not obligatory on the part of the petitioners to approach the Sessions Court first, on the contrary an option is left to the petitioners whether to approach the Sessions Court or to approach this Court, as both the Courts have concurrent jurisdiction for granting bail under Section 439 of Code of Criminal Procedure. It is also submitted by the learned counsel for the petitioners that initially, the petitioners had approached the Sessions Court and the bail applications under Section 439 of the Code of Criminal Procedure, was rejected by the Sessions Court. Thereafter, these petitioners had approached this Court and this Court has also rejected the bail applications preferred by these petitioners, under Section 439 of the Code of Criminal Procedure. Now, thereafter again, the petitioners want to approach this Court and in these set of circumstances, especially, when this Court has already rejected the bail applications of both the petitioners, it is not obligatory on the part of the petitioners, under any law, to approach the Sessions Court. Now, thereafter again, the petitioners want to approach this Court and in these set of circumstances, especially, when this Court has already rejected the bail applications of both the petitioners, it is not obligatory on the part of the petitioners, under any law, to approach the Sessions Court. Counsel appearing for the petitioners has also relied upon the decisions rendered by various Courts and these decisions are as under : (i) 1994 (1) East Cri C 276 : (1994 Cri LJ 638 (SC) (Paras 1, 2 and 3) (ii) 1994 (2) East Cri C 341 (Para 6) (iii) AIR 1987 SC 1613 (Para 5) (iv) 2004 (1) Crimes 23 (Paras 12 and 17). Placing reliance on the aforesaid decisions, it is vehemently submitted by the learned counsel for the petitioners that once the bail application is rejected by this Court, there are practically no chances of getting a favourable order from the Sessions Court and both, time as well as money shall be wasted and the petitioners have to remain in jail for a longer period. Thus, the petitioners, to save time, money and longer period of jail, has approached this Court, so that this Court may appreciate the arguments canvassed by the petitioners for getting petitioners enlarged on bail. On the basis of the aforesaid decision, it is further submitted by the learned counsel for the petitioners that once this Court rejects the bail application and if the Sessions Court grant a bail, such a practice has been deprecated by Hon'ble Patna High Court. Thus, it is submitted that if is a choice of the petitioner, whether to approach this Court or the Sessions Court and the petitioners has chosen to approach this Court, for the aforesaid reasons and there is no legal obligation on the part of the petitioners that always they have to approach first the Sessions Court, even after, their previous bail applications have been rejected or dismissed by this Court. I have heard learned A. P. P., who has vehemently submitted that it is true that there is no legal obligation under Section 439 Of the Code of Criminal Procedure that even after the rejection of the previous bail application, the petitioners have to approach the Sessions Court, but, it is also advisable to send such type of the petitioners to the Sessions Court mainly for the reason that latest factual aspects like further investigation, stage of trial or such other information, whether any person is joined as accused by the Sessions Court, which are not referred in charge-sheet, such type of factual aspects can be made known to this Court otherwise, if directly allowed the petitioners to approach to this Court, lot of time can be consumed in finding of the facts and from distant areas, police shall have to be called by the A. P. P. for verification of the facts, whereas Sessions Court being a local Court can verify the facts of the case easily and therefore, the bail applications can be decided earliest by the Sessions Court. (3) HAVING heard learned counsel for both the sides and looking to the facts and circumstances of the case, it appears that : (i) the present applications have been preferred under Section 439 of the Code of Criminal Procedure, which reads as under: "439. (1) A High Court or Court of Session may direct (a) 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; (b) 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 or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody." (Emphasis supplied) From the aforesaid section, it is clear that it is not obligatory on the part of the petitioner to approach the Sessions Court first. Always there is concurrent jurisdiction vested in both the Courts i.e. in this Court as well as in the Sessions Court. (ii) Looking to the facts and circumstances of the present case, it appears that the present petitioners had moved bail application before the Sessions Court bearing Bail Petition No. 1742 of 2008. which was rejected by the Sessions Court on 22nd January, 2009 and in another case, it is being N. D. P. S. Case No. 18 of 2009, which was rejected by the Sessions Court on 15th May, 2009. Thereafter, they approached this Court and this Court also rejected their bail applications in B. A. No. 919 of 2009 rejected on 27th July, 2009 and in B. A. No. 3832 of 2009 rejected vide order dated 9th June, 2009. Thus, previously preferred bail applications in both the cases before the Sessions Court as well as before this Court have been rejected. This is a second time bail applications have been preferred, by both the petitioners. (iii) It has been held by the Hon'ble Supreme Court in the case of Bimla Devi v. State of Bihar and others as reported in 1994 (1) Eastern Cr C 276 : (1994 Cri LJ 638), especially in paragraphs 1, 2 and 3, which read as under : "1. This petition arises out of a complaint having been made by one Smt. Bimla Devi complaining that Shri P. Kumar, Judicial Magistrate, Dhanbad granted bail to the accused-respondent No. 4 involved in a case under Section 302/34 of the Penal Code for murder of her son, in G. R. No. 1619/92, corresponding to Jorapokher P. S. Case No. 168/92, despite the fact that the two earlier bail applications of the said accused were successively rejected by the High Court, Ranchi Bench. This Court has issued a notice to the respondents including the Judicial Magistrate, Ist Court, Dhanbad, Bihar requiring them to show-cause why the bail granted to the accused be not cancelled. This Court has issued a notice to the respondents including the Judicial Magistrate, Ist Court, Dhanbad, Bihar requiring them to show-cause why the bail granted to the accused be not cancelled. The respondent No. 3, Shri R Kumar, Judicial Magistrate has sent his reply to the show-cause stating that the accused-respondent No. 4 was granted only provisional bail which has been cancelled by him by his order, dated 8-6-1993 and that the accused has already been taken into custody. 2. In view of the fact that the Judicial Magistrate at a later stage has himself cancelled the bail, it is not necessary for us to pass any order with regard to the petitioner's prayer for cancellation of bail but the disturbing feature of the case is that though two successive applications of the accused for grant of bail were rejected by the High Court yet the learned Magistrate granted provisional bail. The course by the learned Magistrate is not only contrary to settled principles of judicial discipline and propriety but also contrary to the statutory provisions (See in this connection AIR 1987 SC 1613 ). The manner in which the learned Magistrate dealt with the case can give rise to the apprehensions which were expressed by the complainant, in her complaint, which was treated by this Court as a writ petition and is being dealt with as such. In the course that we are adopting, we would not like to comment upon the manner in which the learned Magistrate dealt with the case any more at this stage. We, in the facts and circumstances stated above, direct that a copy of this order be sent to the Chief Justice of the Patna High Court for taking such action on the administrative side as may be deemed fit by him. 3. The Writ Petition is disposed of accordingly." - (Emphasis supplied) Thus, it has been permitted by the Hon'ble Supreme Court to prefer bail application before this Court also especially, when earlier bail application has been rejected. 3. The Writ Petition is disposed of accordingly." - (Emphasis supplied) Thus, it has been permitted by the Hon'ble Supreme Court to prefer bail application before this Court also especially, when earlier bail application has been rejected. (iv) It has been held by Hon'ble Patna High Court in the case of Prabhu Yadav alias Prabhu Mukhia v. State of Bihar as reported in 1994 (2) East Cr C 341 especially, in paragraph 6, which reads as under : "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 provisional bail, after the bail application has been rejected by the High Court. In a recent decision of the Supreme Court, in the case of Vikramjit Singh v. State of Madhya Pradesh, 1992 East Cr C 447 (SC): AIR 1992 SC 474 , 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 prosecution 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. Justice Gupta while dealing with the application of another accused. It must be, therefore, held that 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 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 an order which become final and the faith of the people in the judiciary." (Emphasis supplied) Thus, it has been held by the Hon'ble High Court if the previous bail application has been decided by this Court, the petitioner must approach the higher forum and on the contrary, it has been held by the Hon'ble Patna High Court that trial Court should not entertain such applications of bail when previously bail application has been rejected by Hon'ble High Court. Thus, the contentions raised by the petitioners is absolutely true and correct that there is no obligation on his part to approach the trial Court, once the bail application of the very same petitioner has been rejected by the Hon'ble High Court, otherwise, it will be a mere formalities and wastage of time and in a bail application, every petitioner is in much more hurry to get order from the Court concerned and it is rightly submitted by the learned counsel for the petitioners, therefore, that in such type of cases, where previously preferred bail application has been rejected by this Court, then to save time and money both, petitioner can approach this Court, if he so chooses. In this hurry, the petitioner may lose one more chance to approach trial Court, but, the fact remains that there is no legal obligation on the part of the petitioner. (v) It has been held by the Hon'ble Supreme Court in the case of Shahzad Hasan Khan v. Ishtiaq Hasan Khan and another as reported in AIR 1987 SC 1613 in paragraph 5, which reads as under : "5. (v) It has been held by the Hon'ble Supreme Court in the case of Shahzad Hasan Khan v. Ishtiaq Hasan Khan and another as reported in AIR 1987 SC 1613 in paragraph 5, which reads as under : "5. Normally this Court does not interfere with bail matters and the orders of the High Court are generally accepted to be final relating to grant or rejection of bail. In this case, however, there are some disturbing features which have persuaded us to interfere with the order of the High Court. The matrix of facts detailed above would show that three successive bail applications made on behalf of respondent No. 1 had been rejected and disposed of finally by Justice Kamleshwar Nath. In that view it would have been appropriate and desirable and also in keeping with the prevailing practice in the High Court that the bail application which was filed in June 1986 should have been placed before Justice Kamleshwar Nath for disposal. In fact on June 3, 1986. Justice D. S. Bajpai being conscious of this practice and judicial discipline himself passed order directing the bail application to be placed before Justice Kamleshwar Nath but subsequently on 7th June, 1986 he recalled his order. We are of the opinion that Justice D. S. Bajpai should not have recalled his order dated June 3,1986 keeping in view the judicial discipline and the prevailing practice in the High Court. Justice D. S. Bajpai was persuaded to the view that Justice Kamleshwar Nath had passed orders on March 18, 1986, releasing the bail application the matter was therefore not tied up to him. However, the learned Judge failed to notice that when the bail application was listed before Justice Kamleshwar Nath on March 24, 1986 the respondent No. 1, for reasons known to him only, withdrew his application, as a result of which Justice Kamleshwar Nath dismissed the same as withdrawn. This fact was eloquent enough to indicate that respondent No. 1 was keen that the bail application should not be placed before Justice Kamleshwar Nath. Long standing convention and judicial discipline required that respondent's bail application should have been placed before Justice Kamleshwar Nath who had passed earlier orders, who was available as Vacation Judge. The convention that subsequent bail application should be placed before the same Judge who may have passed earlier orders has its roots in principle. Long standing convention and judicial discipline required that respondent's bail application should have been placed before Justice Kamleshwar Nath who had passed earlier orders, who was available as Vacation Judge. 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 creditability 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, Since Justice Kamleshwar Nath was sitting in Court on June 23, 1986 the respondent's bail application should have been placed before him for orders. Justice D. S. Bajpai should have respected his own order dated June 3,1986 and that order ought not to have been recalled, without the confidence of the parties in the judicial process being rudely shaken." (Emphasis supplied) It has been held by Hon'ble Supreme Court that once the bail application is rejected by the High Court and if second time bail application is rejected, it must be placed, as far as possible before the same Hon'ble Judge, if he is available. Thus, successive bail application should come before the same Judge as part of the aforesaid decision so as to save time and maintain the judicial discipline. Thus, once, this Court rejects the bail application, if second time bail application is preferred then it must go before the same Judge as far as possible. (vi) It has been held by Hon'ble Division Bench of Kerala High Court in the case of Balan v. State of Kerala as reported in 2004 (1) Crimes 23 in paragraphs 12 and 17, which read as under : "12. (vi) It has been held by Hon'ble Division Bench of Kerala High Court in the case of Balan v. State of Kerala as reported in 2004 (1) Crimes 23 in paragraphs 12 and 17, which read as under : "12. In this context, it may also be noticed that even under S. 439, the Legislature has conferred power to grant bail on the High Court as well as the Court of Sessions. The two provisions do not even remotely suggest that the petition has to be filed before the Sessions Court first and then before the High Court. The power to grant bail has been conferred equally on both the Courts. It is clearly concurrent. The citizen has the opportunity to approach the Court of Session and then the High Court. It gives him a second chance to seek bail. However, in a case where he chooses to come directly to the High Court, he cannot be thrown out merely on the ground that he has failed to approach the Sessions Court. The petition is clearly maintainable. Equally, it cannot also be said that he must make out an 'exceptional' case before his petition for bail can be entertained. Acceptance of the view as laid down by the Court in Usman's case may result in defeating the right to liberty as guaranteed under the Constitution. 17. In view of the above, we are of the opinion that the provisions of Ss. 438 and 439 do not call for a restricted interpretation. The citizen has the right to choose. His application should be considered. Each case should be examined on its own merits. If it is found that the ground for grant of bail is not made out, the Court has the full jurisdiction to deny relief. Equally, if a case is made out, the citizen's liberty should not be allowed to be curtailed. However, we do not find any ground to deny the citizen's right to choose the forum to approach the Court and to make a prayer. This is not warranted by the provision. The reference is accordingly answered. The matter shall now be listed before the learned single Judge." Thus, it has been held by Hon'ble High Court of Kerala that the bail application preferred by the petitioner cannot be thrown out merely on the ground that he has failed to approach Sessions Court. Petition is clearly maintainable. The reference is accordingly answered. The matter shall now be listed before the learned single Judge." Thus, it has been held by Hon'ble High Court of Kerala that the bail application preferred by the petitioner cannot be thrown out merely on the ground that he has failed to approach Sessions Court. Petition is clearly maintainable. (vii) It has been held by Hon'ble Orissa High Court in the case of Chandramani Swain v. State of Orissa as reported in 1993 East Cr C 236 especially, in paragraph 5, which reads as under : "So far as the first question is concerned, there cannot be any marine) of doubt that the power of the Sessions Judge to consider an application for bail under Section 439, Cr. P. C. has not been taken away merely because in course of investigation, the application for bail by an accused is rejected by the High Court. In that view of the matter, the conclusion of the Additional Sessions Judge in the impugned order that the subsequent application was not maintainable is wholly erroneous and cannot be sustained." In view of the aforesaid decision also, it has been held by Hon'ble Orissa High Court that the bail application is tenable at law, if it is preferred directly in the High Court, especially, previously when the bail application preferred by the High Court, on the contrary, it has been also held that if the petitioner approached the trial Court/Sessions Court, the said application was not maintainable. (4) IN view of the aforesaid decisions and looking to the provisions of Section 439 of the Code of Criminal Procedure, it is an option given to the petitioners, whether they want to approach the Sessions Court or to the High Court. Both the Courts have concurrent jurisdiction. When previously bail application is rejected by both the Courts i.e. by the Sessions Court as well as by this Court and if successive bail application is to be preferred second time or subsequent and if they approach directly the High Court, it cannot be held that such type of application is not tenable at law. On the contrary, it is tenable at law and it is in accordance with Section 439 of the Code of Criminal Procedure. On the contrary, it is tenable at law and it is in accordance with Section 439 of the Code of Criminal Procedure. When the petitioners approach this Court, petitioners are losing a chance to approach the trial Court otherwise the petitioners will have two chances, first to approach the Sessions Court and then to approach the High Court, but, if the petitioners are not choosing their option to approach the trial Court, looking to their own case and looking to their previously rejected bail applications by the Hon'ble High Court such a choice is vested in the petitioners to approach this Court. They may choose Hon'ble High Court or they may choose Sessions Court under Section 439 of the Code of Criminal Procedure. IN view of this legal position under Section 439 of the Code of Criminal Procedure as well as looking to the aforesaid decisions, these applications preferred under Section 439 of the Code of Criminal Procedure. 1973 before this Court are tenable at law. They cannot be brushed aside as not maintainable, but, whenever they are approaching this Court, without approaching the Sessions Court, even after previous bail application is rejected, by this Court, it shall be obligatory on the part of the petitioners to point out on oath, in their memo of the bail application the stage of the trial, and the report filed under Section 173 of the Code of Criminal Procedure shall be presented before this Court so that the time can be saved in deciding the bail application. IN both these pending cases, petitioners are at liberty to file additional affidavits stating the aforesaid aspects of the matter. Such types of maintainability shall also reduce the cost of getting justice. The reference made to this Division Bench is accordingly answered and we, hereby, direct the Registry of this Court to place these matters before Hon'ble the Chief Justice, for placing the same before appropriate Court, for their decision, on merits. Order accordingly.