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2011 DIGILAW 94 (CHH)

Bimal Kumar Agrwal v. State of C. G.

2011-03-07

T.P.SHARMA

body2011
ORDER T.P. Sharma, J. 1. By this petition under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Code'), the Petitioner has challenged legality and propriety of the order dated 14.9.2009 passed by the Sessions Judge in Bail Petition No. 1477/ 2009, whereby the Sessions Judge, Raipur has granted bail under Section 439 of the Code to Respondents No. 2 to 4. 2. I have heard leaned counsel for the parties, perused the petition and order impugned. 3. Learned Counsel for the Petitioner submits that initially at the instance of present Petitioner and on the basis of complaint made before the Judicial Magistrate First Class, Raipur and in its stance Police Station Civil Lines, Raipur has registered Crime No. 24/2008, but finally final report for not making out the case against Respondents No. 2 to 4 was filed. Considering the final report the Magistrate proceeded under Chapter XV of the Code which was challenged before the revisional Court by the present Petitioner and vide order dated 17.3.2009 passed by the Sessions Judge, Raipur in Criminal Revision No. 34/ 2009 has directed for registration of criminal case against Respondents No. 2 to 4 for the offence punishable under Sections 177, 191, 192, 193, 403, 406, 420, 467, 468, 471 and 201 of the I.P.C. which was challenged by Respondents No. 2 to 4 and vide order dated 14.5.2009 in Cr.M.RNo. 247 of 2009 this Court has quashed the order directing registration passed by the Sessions Judge, Raipur. 4. Learned Counsel further submits that during course of such inquiry and after registration of crime by the Police Station Civil Lines, Raipur, Respondents No. 2 to 4 has filed an application for grant of bail under Section 438 of the Code which was allowed by the Third Additional Sessions Judge, Raipur vide order dated 16.5.2008. Thereafter vide order dated 7.7.2008, the Third Additional Sessions Judge i.e., same Additional Sessions Judge has granted bail to Respondents No. 2 to 4 under Section 439 of the Code. Thereafter vide order dated 7.7.2008, the Third Additional Sessions Judge i.e., same Additional Sessions Judge has granted bail to Respondents No. 2 to 4 under Section 439 of the Code. The order granting bail by the Third Additional Sessions Judge was also questioned by the present Petitioner and vide order dated 5.5.2009, the then Sessions Judge, Raipur has quashed the bail order passed vide order dated 7.7.2008 in Bail Petition No. 60072009 under Section 439(2) of the Code which was also challenged in Cr.M.P. No. 256/2009 and vide order dated 31.7.2009 this Court has disposed of the petition with observation that after order dated 14.5.2009 passed in Cr.M.P. No. 247/2009 i.e., quashment of the order of Sessions Judge, there was no any criminal case pending against Respondents No. 2 to 4, no offence has been registered for taking cognizance against Respondents No. 2 to 4 in which they are required to furnish bail or continue in bail. Thereafter, on the basis of inquiry under Chapter XV of the Code, the Judicial Magistrate First Class, Raipur has registered the case against Respondents No. 2 to 4 for the offence punishable under Sections 177, 191, 192, 193, 403, 406, 420, 467, 468, 471 and 201 of the I.P.C. and issued warrant of arrest against them, then Respondents No. 2 to 4 filed application for their release on bait under Section 438 of the Code which was granted and thereafter on 14.9.2009 bail under Section 439 of the Code was granted to Respondents No. 2 to 4. 5. Learned Counsel also submits that at the time of grant of bail vide order dated 14.9.2009, order dated 5.5.2009 was in existence passed by a coordinate Judge, therefore, without distinguishing the facts and circumstances, the Sessions Judge was not competent to take contrary view or to grant bail to Respondents No. 2 to 4 and by granting bail, the Sessions Judge has committed grave illegality and order is against judicial propriety and judicial discipline. 6. Learned Counsel placed reliance in the matter of Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and Anr. (2005)2 SCC 42 in which the Supreme Court has held that finding of higher court or coordinate Bench is binding as res judicata and the Courts are bound by the doctrine of judicial discipline. Learned Counsel further placed reliance in the matter of State of Maharashtra and Anr. v. Mohd. (2005)2 SCC 42 in which the Supreme Court has held that finding of higher court or coordinate Bench is binding as res judicata and the Courts are bound by the doctrine of judicial discipline. Learned Counsel further placed reliance in the matter of State of Maharashtra and Anr. v. Mohd. Sajid Husain Mohd. S. Husain etc AIR 2008 SC 155 in which the Supreme Court has held in case of serious allegation against accused persons, accused are not entitled for discretionary relief under Section 438 of the Code. Learned Counsel also placed reliance in the matter of Vikramjit Singh v. State of Madhya Pradesh AIR 1992 SC 474 in which the Supreme Court has held that bail order passed by a co-ordinate Bench of the same Court cannot be cancelled by co-ordinate Bench without new or additional ground. More so, when earlier order of grant of bail had become final being not appealed against. 7. On the other hand, learned State counsel opposes the petition and submits that the Court below has not committed any illegality while granting bail to Respondents No. 2 to 4. 8. Vide order dated 14.9.2009 the Sessions Judge, Raipur has granted regular bail and has taken note of previous order dated 5.5.2009 that after the order passed by this Court in Cr.M.P. No. 256/2009 dated 31.7.2009, the order dated 5.5.2009 passed by the Sessions Judge, Raipur was not in existence. 9. Initially, on the basis of complaint filed on behalf of the Petitioner, Judicial Magistrate First Class, Raipur has directed the police under Section 156(3) of the Code and Police Station Civil Lines, Raipur has registered Crime No. 24/2008, but finally final report, not making out the case was filed before Judicial Magistrate First Class, Raipur. After registration of crime and before submitting of final report, Respondents No. 2 to 4 were granted anticipatory bail and regular bail by the Third Additional Sessions Judge, Raipur. Order granting bail by the Third Additional Sessions Judge, Raipur was cancelled by the then Sessions Judge, Raipur vide order dated 5.5.2009. Order dated 5.5.2009 does not reveal that at that time the then Third Additional Sessions Judge was not posted in the Sessions Division, Raipur as Third Additional Sessions Judge or as the Additional Sessions Judge and was not in a position to perform his judicial duty. 10. Order dated 5.5.2009 does not reveal that at that time the then Third Additional Sessions Judge was not posted in the Sessions Division, Raipur as Third Additional Sessions Judge or as the Additional Sessions Judge and was not in a position to perform his judicial duty. 10. As held by the Supreme Court in the matter of Kalyan Chandra Sarkar (supra), finding of higher Court or coordinate Bench is binding by doctrine of judicial discipline. The Supreme Court in paras 19 and 20 observed as under: 19. The principles of res judicata and such analogous principles although are not applicable in a criminal proceeding, still the courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our country. The findings of a higher court or a coordinate Bench must receive serious consideration at the hands of the court entertaining a bail application at a later stage when the same had been rejected earlier. In such an event, the courts must give due weight to the grounds which weighed with the former or higher court in rejecting the bail application. Ordinarily, the issues which had been canvassed earlier would not be permitted to be reagitated on the same grounds, as the same would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting. 20. The decisions given by superior forum, undoubtedly, are binding on the subordinate for a on the same issue even in bail matters unless of course, there is a material change in the fact situation calling for a different view being taken. Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Therefore, we are not in agreement with the argument of learned Counsel for the accused that in view of the guarantee conferred on a person under Article 21 of the Constitution, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by the courts earlier, including the Apex Court of the Country. 11. At the time of passing the order dated 5.5.2009 by the then Sessions Judge, Raipur, he was required to observe the doctrine of judicial discipline and he was required to place the application relating to cancellation of bail order passed by the Third Additional Sessions Judge before such officer for consideration, but reason best known to the then Sessions Judge he has recalled the order granting bail passed by the Third Additional Sessions Judge, Raipur. Same is contrary to law in the light of dictum of the Supreme Court in the matter of Vikramjit Singh AIR 1992 SC 474 (supra). 12. While proceeding under Chapter XV of the Code after receiving negative report of Police, Judicial Magistrate First Class, Raipur has not committed any illegality but when the same was challenged before the then Sessions Judge and the then Sessions Judge has directed for registration of offence which was also contrary to law and even in case of dismissal of complaint under Section 203 of the Code. The order directing registration was quashed by this Court. Inquiry was still pending before Judicial Magistrate First Class, Raipur. During the aforesaid period bail was granted by the Third Additional Sessions Judge and recalled by the then Sessions Judge. Recalling of bail order was also challenged before this Court in Cr.M.P. No. 256/2009. Same was disposed of vide order dated 31.7.2009. Para 4 of the said order reads as under: 4. The order impugned and order dated 14/5/09 passed by this Court in Criminal Misc. Recalling of bail order was also challenged before this Court in Cr.M.P. No. 256/2009. Same was disposed of vide order dated 31.7.2009. Para 4 of the said order reads as under: 4. The order impugned and order dated 14/5/09 passed by this Court in Criminal Misc. Petition No. 247/2009 reveals that police has submitted the final report before the Magistrate that on the basis of investigation filing of the charge sheet for taking cognizance against the present Petitioner is not possible and on the basis of such final report even Judicial Magistrate First Class has not taken any cognizance the order directing her taking cognizance by the Sessions Judge has already been quashed by this Court vide order dated 14/5/09. Therefore at present no any criminal case is pending against the present Petitioners or no offence has been registered for taking cognizance against the present Petitioners in which he require to furnish bail or continue in bail, with these observations the present petition is stands disposed of. 13. Virtually after quashment of order directing registration of the case, no criminal case was pending before any Court against Respondents No. 2 to 4. There was no occasion for granting or refusing their bail, therefore, no such order relating to cancellation of bail was legally in existence and revival of such order after passing fresh order of taking cognizance, registration of criminal case and issuance of process was not legally possible. The Sessions Judge, Raipur has not committed any illegality in not considering the order dated 5.5.2009 passed by the then Sessions Judge, Raipur. Even the aforesaid order was in existence, even then same was contrary to law declared by the Supreme Court in the matters of Kalyan Chandra Sarkar (supra) and Vikramjit Singh (supra). Even for the sake of argument and decision it is considered that the order dated 5.5.2009 was in existence then same was also contrary to law declared by the Supreme Court in the matters of Kalyan Chandra Sarkar (supra) and Vikramjit Singh (supra) and still the order passed by the Third Additional Sessions Judge granting bail was good and sustainable under the law. 14. At the time of granting or refusing bail, the Courts are required to consider the gravity of the offence, as held by the Supreme Court in the matter of Mohd. Sajid Husain Mohd. 14. At the time of granting or refusing bail, the Courts are required to consider the gravity of the offence, as held by the Supreme Court in the matter of Mohd. Sajid Husain Mohd. S. Husain etc (supra), while granting bail the Sessions Judge has observed the gravity of offence. 15. By granting bail to Respondents No. 2 to 4, the Sessions Judge, Raipur has not committed any illegality. The then Sessions Judge was bound by the previous order passed by a coordinate Sessions Judge i.e., Third Additional Sessions Judge under the doctrine of judicial discipline. 16. For the foregoing reasons, I do not find any scope for interference in the order impugned in exercise of extraordinary inherent jurisdiction in terms of Section 482 of the Code. The petition is liable to be dismissed and it is hereby dismissed. Petition Dismissed.