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Madhya Pradesh High Court · body

2012 DIGILAW 610 (MP)

Dileep Khare v. State of M. P.

2012-06-26

S.K.GANGELE, SHEEL NAGU

body2012
Judgment S.K. Gangele, J.- The learned Single Judge of this court in M.Cr.C. No. 7230/11 referred the following substantial questions of law under Rule 8 of Chapter IV of High Court of M.P. Rules 2008 to the Hon'ble Chief Justice for making reference to a larger Bench : "1. Whether, provisions made under Rule 57 Chapter X and Format 14, mentioning of particulars of bail applications of other co-accused persons, is mere a formality or the provisions are made to maintain harmony amongst the different bail applications filed by several co-accused before different Benches to prevent contradictory orders ? 2. Whether, it is necessary for the concerned Bench, after it has been brought to its notice that application of co-accused has been dismissed, to consider the facts and grounds mentioned for dismissing the application of other co-accused by earlier order mentioned before it in para 3 of the bail application ? 3. Whether, the order passed in a bail application, after dismissal of bail application of co-accused without considering the points for bail application as mentioned in case of Daini alias Raju (supra), can be followed for grant of bail to other co-accused on the ground of parity, whose bail has been refused earlier? Consequently, the Hon'ble Chief Justice constituted this Bench to answer the reference. 2. The applicant Dilip Khare was arrested on 23.4.2011 for an offence registered vide Crime No. 121/11 at Police Station Kotwali, Datia under Sections 302, 147, 148, 149 of IPC. He applied for grant of bail under Section 439 of Cr.P.C. The aforesaid application was rejected by the learned Single Judge vide order dt. 30.9.2011 passed in M.Cr.C. No. 4940/11 after recording following reasons : "According to the case diary, applicant and other co-accused persons went to the Dy. S.P. Rajeev Sharma and there was hot talk between them, in which deceased D.P. Gupta intervened. After that all the accused persons had quarreled with the deceased for interference. During that time, one Rajveer Singh had fired a gun shot on D.P. Gupta, as result of which he died. Applicant himself is Police constable. The incident has occurred due to indiscipline of the police Office resulting in death of D.P. Gupta. Although, applicant is not caused any injury to the deceased. The manner in which the offence took place shows the active involvement of the applicant. Applicant himself is Police constable. The incident has occurred due to indiscipline of the police Office resulting in death of D.P. Gupta. Although, applicant is not caused any injury to the deceased. The manner in which the offence took place shows the active involvement of the applicant. Therefore, the applicant cannot be given the benefit of bail The bail application of the applicant is dismissed." 3. Thereafter, another co-accused Hari Singh Jadon filed another application for grant of bail under Section 439 of Cr.P.C. It was registered as M.Cr.C. No. 7268/11. The learned Single Judge allowed the aforesaid bail application vide order dt. 8.12.2011 after recording the following reasons: "Learned counsel for the applicant submits that the applicant is a reputed citizen of the locality. He is a police officer by profession. A quarrel took place initially between Rajveer and Rajesh Sharma who objected because the accused Rajvir Singh had a gun and the deceased was the person who intervened to stop that quarrel. Thereafter, it is alleged that accused persons stopped motorcycle of victim and thereafter, Rajvir Singh assaulted victim D.P. Gupta by firing from a gun. It is alleged that applicant provoked Rajvir Singh to kill the victim. There is no previous enmity shown between the parties. Applicant is also a police officer and there was no possibility against him to provoke co-accused Rajvir Singh. First Information Report has not been lodged by the concerned Head Constable/Moharir but it is lodged by brother of deceased after 20 minutes of the incident. It is not possible for the four persons to provoke any one in omnibus manner. It appears that the applicant and so many persons were implicated by the complainant in the matter. There is no overt act of the applicant by which, his common intention can be presumed for committing of fence under Section 302IPC. The persecution witnesses who were told to be eye witnesses were examined after a long period of the incident. No reason has been shown for their delayed examination. Under such circumstances, applicant is falsely implicated in the matter. If he is not enlarged on bail, he may loose his job. Applicant is in custody since 3.10.2011. Under such circumstances, he prays for bail. Learned Panel Lawyer for the State opposes the application. No reason has been shown for their delayed examination. Under such circumstances, applicant is falsely implicated in the matter. If he is not enlarged on bail, he may loose his job. Applicant is in custody since 3.10.2011. Under such circumstances, he prays for bail. Learned Panel Lawyer for the State opposes the application. Learned counsel for the objector submits that the applicant was the main person who provoked co-accused Rajvir Singh to kill the victim. Since the informer was present at the time of incident, therefore, he had lodged FIR within 20 minutes of the incident. Bail applications of other co-accused were dismissed by the court and the matter of the applicant is similar to them. Under such circumstances, he prays that the bail application of the applicant may not be accepted. After hearing aforesaid arguments and looking to the facts and circumstances of the case, without expressing any view on the merits of the case, I am of the opinion that this is a fit case in which bail may be granted to the applicant Harisingh Jadaun." 4. Another co-accused Narendra Pal also applied for grant of bail under Section 439 of Cr.P.C. The aforesaid application was registered as M.Cr.C. No. 8933/11 and the learned Single Judge vide order dt. 2.3.2012 granted the bail to the applicant on the ground that co-accused Hari Singh Jadon was enlarged on bail and because there is parity between the two accused namely Narendra Pal alias Tikku and Hari Singh Jadon, hence, the applicant Narendra Pal is also entitled to be enlarged on bail. 5. The applicant Dilip Khare filed second bail application for grant of bail on medical ground. Thereafter, he submitted an application for grant of regular bail on the ground of parity with other co-accused persons, namely; Narendra Pal and Hari Singh Jadon. The matter came up for hearing before the learned Single Judge, who had rejected the first bail application of applicant Dilip Khare earlier and thereafter, the learned Single Judge referred the matter to the Hon'ble Chief Justice for constitution of a larger Bench to answer the reference on the substantial questions of law mentioned earlier in the order. 6. The matter came up for hearing before the learned Single Judge, who had rejected the first bail application of applicant Dilip Khare earlier and thereafter, the learned Single Judge referred the matter to the Hon'ble Chief Justice for constitution of a larger Bench to answer the reference on the substantial questions of law mentioned earlier in the order. 6. The learned counsel for the applicant has submitted that if there is parity between the two accused persons involved in a criminal case, then another accused person is also eligible to receive benefit of grant of bail if other co-accused person has been granted bail. It is further submitted that it is not mandatory to mention the facts in the bail application filed on behalf of one accused person that the bail application of other co-accused or bail applications of other co-accused persons had been rejected earlier because it is not possible for the accused person/persons to find out the fact that whether earlier other accused persons had filed the bail applications or not. It is further submitted that it is also not necessary to consider the fact by a bench, who is hearing the bail application of another accused that the earlier bail application of another accused was rejected because the accused person, who filed the bail application, was not heard by the Bench while rejecting the bail application. In support of contentions the learned counsel relied upon the following judgments : (i) Nanha vs. State of U.P. - 1993 Cri.L.J. 938 (ii) Shri Digambar Jain Atisay Kshetra Maksi vs. Chief Municipal Officer - 1992(2) MPWN 176 . (iii) Manohar vs. State of M.P. - 2007 (III) MPWN 35 (iv) Sham Lal vs. State of Haryana - (2006) 1 SCC (Cri.) 344 7. Contrary to this, the learned Public Prosecutor appearing on behalf of the State has contended that the provision of disclosing the fact in regard to fate of bail application of other co-accused person/persons has been incorporated in the High Court Rules and Orders named as High Court of M.P. Rules, 2008 purposely so that the fact that the application of another co-accused has been rejected by the court can be brought to the notice of the Bench, who is hearing the application of another ca-accused. It is further submitted by the learned counsel that it is obligatory on the part of the learned Judge to consider the fact while deciding the bail application of an accused that the bail application of another accused was dismissed by the Judge He further submits that in accordance the pronouncement of the judgments of the Hon'ble Supreme Court, it is obligatory on the court to consider various aspects of the case in deciding the bail application if the offence alleged to be committed by an accused is punishable with death or life imprisonment. In support of his contentions, learned Public Prosecutor relied upon the following judgments : (i) Munna Singh Tomar vs. State of M.P. - 1989 MPJR 433 = 1990 Cri.L.J. 49 (ii) Narayan Prasad vs. State of M.P. -1992 (II) MPJR (FB) 298 = 1993 JLJ 225 . (iii) The State vs. Captain Jagjit Singh - AIR 1962 SCC 253. 8. In accordance with the rules named as High Court of M.P. Rules 2008 (hereinafter called as Rules of 2008), it is mandatory to file an application for grant of bail under Section 438 or 439 Cr.P.C. in a particular format named as Format No. 14. Rule 3 of the aforesaid format prescribes that it has to be mentioned that the other co-accused person/s had filed bail application. Rule 3 is as under : "3. (Where the number of accused persons is more than one), To the best of the knowledge of the applicant, no bail application has been filed by any of the accused persons. Or To the best of the knowledge of the applicant, the co-accused person (s) have filed following bail application (s). Name of Date of Institution Date of Name of The accused Application Number the Order the Judge if known 9. Hon'ble Supreme Court has considered the question of hearing the subsequent bail application by the same Bench which had rejected the earlier bail application of an accused in the case of Shahzad Hasan Khan vs. Ishitaq Hasan Khan reported in AIR 1987 SC1613, in which Hon'ble Supreme Court has held that judicial discipline requires that the matter must be placed before the same judge for hearing, if he is available, who has heard the earlier bail application. Hon'ble Supreme Court has made following observations in the aforesaid judgment: "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 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." 10. The Division Bench of this court in the case of Munna Singh Tomar vs. State of M.P. reported in 1989 MPJR 433 = 1989 JLJ 350 has taken the same view after following the judgment of the Hon'ble Supreme Court reported earlier and held that even if the bail application of an accused has been withdrawn, the subsequent bail application of the same accused has to be herd by the same Bench. The Division Bench has observed as under after answering the reference: "Even if the earlier bail application had been dismissed as withdrawn or not pressed, by any Single Judge of the High Court as a Vacation Judge sitting during the High Court Vacations, or otherwise, to hear and dispose of bail applications, either all the stage of the motion hearing or otherwise, a subsequent bail application of the same applicant should be placed for hearing before the same Judge who had rejected the earlier bail application, so long as he is available." 11. The Full Bench of this court again considered this issue in the case Narayan Prasad vs. State of M.P. reported in 1992 (II) MPJR (FB) 298 = 1993 JLJ 225 and held as under: "Admittedly, there is no law nor any statutory Rule laying down that the subsequent bail applications should be placed before the same Bench or the Judge, for disposal, who passed the earlier orders on the bail application of an accused. But in course of time, a long standing convention, based on judicial propriety and sound judicial discipline, has developed to the effect that once the bail application of an accused has been disposed of/rejected by a Bench or any Judge, then all the subsequent bail applications should be placed before the same Bench or Judge who passed the earlier orders provided he is available. The reasons for so doing are obvious and multifarious. Experience shows and it is common knowledge also that when the application of an accused/appellant is rejected by a Bench or a particular Judge then that accused/appellant is disinclined to repeat another bail application, at a later stage, either on the identical grounds as were raised and rejected earlier or on new material before the same Bench/Judge and ventures to take chance before another Bench/Judge of his choice on the expectation that he might get a favourable order. Most often, during the course of an argument on bail application when the counsel appearing for the accused/appellant senses a feeling or gathers an impression that he would not be able to secure favourable order, at that stage from a particular Bench or a Judge, he comes forward with a request for withdrawal of the application which is normally dismissed as withdrawn. Similarly, an accused/appellant whose earlier bail application has been rejected by a particular Bench or a Judge would wait till that honourable Judge is out for a short interval or during vacation to make a subsequent bail application and take a chance before another Bench or a Judge. Similarly, an accused/appellant whose earlier bail application has been rejected by a particular Bench or a Judge would wait till that honourable Judge is out for a short interval or during vacation to make a subsequent bail application and take a chance before another Bench or a Judge. If in all such circumstances the accused/appellant is given the liberty to make subsequent bail applications at his convenience and choice before any other Bench or Judge, it would definitely lead to hazardous results and it is for these reasons that the Supreme Court in the case of Shahzad Hasan Khan (supra) reiterated that according to the prevailing practice the subsequent bail application should be placed before the same Judge who had disposed of the earlier application." 12. The Hon'ble Supreme Court in the case of State vs. Captain Jagjit Singh reported in AIR 1962 SC 253 has held as under in regard to consideration by the court while considering the application for grant of bail of an accused involved in serious offences: "The High Court fell in dealing with the application for bail before it, and it should have considered the matter even if it did not consider it proper at that stage to decide the question whether the offence was under S. 3 or S. 5, on the assumption that the case fell under S.3 of the Act. It should then have taken into account the various considerations, such as, nature and seriousness of the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State, and similar other considerations which arise when a court is asked for bail in a non-bailable offence. It is true that under S.498 of the Code of Criminal Procedure, the powers of the High Court in the mater of granting bial are very wide; even so where the offence is non-bailable, various considerations such as those indicated above have to be taken into account before bail is granted in a non-bailable offence. This the High Court does not seem to have done for it proceeded as if the offence for which the respondent was being prosecuted might be a bailable one." 13. The Hon'ble Court in the case of Sanjay Chandra Vs. This the High Court does not seem to have done for it proceeded as if the offence for which the respondent was being prosecuted might be a bailable one." 13. The Hon'ble Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation reported in (2012) 1 SCC 40 has considered the question in regard to what facts have to be taken into consideration by the court in admitting on bail to an accused arrested in non bailable offences. In the aforesaid case, Hon'ble Supreme Court has considered the judgments in the case of State of Rajasthan Vs. Balchand reported in 1977 (4) SCC 308 , Gudikanti Narasimhulu Vs. Public Prosecutor reported in 1978 (1) SCC 240 , Gucharan Singh Vs. State (Delhi Admn.) reported in 1978 (1) SCC 118 , Babu Singh Vs. State of U.P. reported in 1978 (1) SCC 579 , Vaman Narain Ghiya Vs. State of Rajasthan reported in 2009 (2) SCC 281 , Siddharam Satlingappa Mhetre Vs. State of Maharashtra reported in 2011 (1) SCC 694 , Prahlad Singh Bhati Vs. NCT. Delhi reported in 2001 (4) SCC 280 , State of U. P. Vs. Amarmani Tripathi reported in 2005 (8) SCC 21 . 14. After considering the aforesaid judgments, in our opinion, Hon'ble Supreme Court has laid down that the court has to apply its discretion in a judicious manner while considering the application for grant of bail and it has to consider the factors that (a) the nature & seriousness of the offence, (b) the character of the evidence and reasonable apprehension of the witnesses being tempered with & (c) the larger interest of the public or the State. The Hon'ble Supreme Court specifically in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra reported in 2011 (1) SCC 694 has observed that "just as liberty is precious to an individual, so is the society's interest in maintenance of peace, law and order. Both'are equally important. The Hon'ble Supreme Court in the case of Shahzad Hasan Khan (supra) quoted above has clearly observed that 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. Both'are equally important. The Hon'ble Supreme Court in the case of Shahzad Hasan Khan (supra) quoted above has clearly observed that 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. In our opinion, the observations of the Hon'ble Supreme Court are important and these observations are to be kept in mind by a Judge while deciding the application so that the conflicting orders may not be passed by different Benches. 15. In the aforesaid background, the format prescribed under Chapter 10 of Rule 54 of the Rules of 2008 in filing the application for bail before the High Court is to be considered. In our opinion, it is necessary to mention the fact in regard to fate of the bail application/applications of another co-accused so the judge while considering the bail application of another co-accused can take into consideration the fact in order to avoid the conflicting orders on the same subject because it is not in the interest of justice that the conflicting orders be passed in the same case. It would be against the credibility of the Institution and it would also create an adverse impression in the minds of the litigants. The argument advanced at the bar that it is not possible for an accused arrested in a criminal case to find out that whether other co-accused have filed the bail application or application could not be accepted because registry has a computarised filing system and from computer or Internet it can easily be find out that whether other co-accused have filed the bail applications or not and whether it was rejected or not. It is common knowledge that if any co-accused is enlarged on bail, the other accused person/s know the fact immediately. 16. The Hon'ble Supreme Court in the case of Shahzad Hasan Khan (supra) has clearly observed that there may be unanimity in the orders of the courts passed in the same set of facts and this principle is in consonance with the legal principle of law that on the same set of facts there would not be divergent views of the courts. The Hon'ble Supreme Court further observed that a litigant be not permitted to select a court depending upon whether the court is of his liking or not. The Hon'ble Supreme Court further observed that a litigant be not permitted to select a court depending upon whether the court is of his liking or not. In this background in our opinion, it is necessary for the judge, who is deciding the subsequent bail application of a co-accused to consider the fact that earlier bail application of another co-accused on similar set of facts had been rejected by another Bench. This fact is not a binding precedent on the court but atleast it is obligatory on the part of the court to consider the aforesaid fact. So an inference can be drawn from the order of the court that the learned Judge while deciding the bail application has applied its mind to all the relevant circumstances and evidence of the case as observed by the Hon'ble Supreme Court in several judgments quoted above in the order. The learned counsel appearing on behalf of the applicant has relied on the Division Bench decision of Allahabad High Court in the case of Nanha vs. State of U.P., Reported in 1993 Cri.LJ. 938. In the aforesaid judgment, Division Bench of Allahabad High Court has held that the fact of rejection of earlier application of bail of another co-accused could not be considered in the matter of considering the bail application of another co-accused on the ground that the accused whose bail application is being considered by the court had no opportunity to put forward his case before the court which had refused the applicant of another co-accused. The judgment of Allahabad High Court is distinguishable on the facts of the case that-in our High Court specific rules have been framed by the High Court and format has been prescribed in regard to filing of the bail applications and as per the format, it is necessary for the accused to mention the fact in regard to status and fate of bail application(s) of other co-accused person(s) and that has been consciously added in order to bring into notice to the court about the order which has been passed in the case of another co-accused and if there is no obligation on the part of the court to consider the aforesaid fact while granting the bail to other co-accused, it would be an empty formality and that would be against the intention of the Rules of 2008. 17. 17. It is well settled principle of law that only those orders in which the relevant facts have been considered by the court are binding on another Bench. The Hon'ble Supreme Court in the case of Anwari Begum vs. Sher Mohammad and another reported in 2005 SCC (Cri) 1669 has held as under about the aforesaid principle : "There is a need to indicate in the order reasons for prima facie concluding why bail was being granted, particularly where an accused was charged of having committed a serious offence. Any order dehors of such reasons suffers from non application of mind. Though a detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing orders on bail applications, yet a court dealing with the bail application should be satisfied as to whether there is a prima facie case, but exhaustive exploration of the merits of the case is not necessary. The court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course. The factors which the court must consider among other circumstances before granting bail are (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and (iii) prima facie satisfaction of the court in support of the charge." 18. In our opinion, the same principle can be applied by the court while deciding the application of bail of an accused when the co-accused has been granted the benefit of bail. Normally, if the order has been passed after considering all the relevant facts as mentioned by the Hon'ble Supreme Court and quoted above in this order by the court, then certainly another bench is bound to grant same benefit to another co-accused whose case is similarly situated on the ground of parity. However, if relevant facts have not been considered by the court as mentioned by the Division Bench of this court in 1989 MPJR 187 = 1989 JLJ 323 , then the court can refuse to grant benefit to the co-accused after recording reasons. On the basis of the above discussions, we answer the reference accordingly : "1. However, if relevant facts have not been considered by the court as mentioned by the Division Bench of this court in 1989 MPJR 187 = 1989 JLJ 323 , then the court can refuse to grant benefit to the co-accused after recording reasons. On the basis of the above discussions, we answer the reference accordingly : "1. That the provisions made under Rule 57 Chapter X and Format 14, mentioning of particulars of bail applications of other co-accused persons, is not a mere formality. These provisions have been made to maintain harmony in deciding similar bail applications. It is necessary to mention the facts in application filed under Section 438, 439 of Cr.P.C. as per Rules. 2. That it is necessary for another Bench to consider the fact that the bail application of another co-accused similarly situated has been rejected earlier, but the order of rejection is not binding on the court. However, the court has to take into consideration the aforesaid fact that it would be obligatory on the court to mention the aforesaid fact in the order. 3. That if the order passed by the court of granting bail to an accused has been passed without considering the evidence and other facts of the case as mentioned above in the order, then it would not be necessary for another Bench to grant benefit of bail to another co-accused on the grant of parity and the court can reject the application after regarding adequate reasons or matter can be referred for consideration to the larger bench in accordance with the provisions of Rules of 2008. We answer the reference accordingly.