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2019 DIGILAW 2337 (MAD)

T. Kokila Devi v. S. Thenmurugan

2019-09-09

G.R.SWAMINATHAN

body2019
ORDER : G.R. Swaminathan, J. 1. The first respondent herein, namely, S. Thenmurugan stands implicated as first accused in Crime No. 13 of 2019 registered on the file of the Inspector of Police, All Women, Police Station, Karaikudi, for the offences under Sections 294(b), 498(A) and 506(i) of I.P.C 2. His wife Kokila Devi has levelled serious allegations of physical and mental cruelty against him. While so, apprehending arrest at the hands of the Inspector of Police, All Women Police Station, Karaikudi, first respondent filed Crl.O.P.(MD) No. 7760 of 2019 before the Madurai Bench of Madras High Court. In the said petition, the defacto complainant T. Kokila Devi filed an intervention petition. The said petition for anticipatory bail was however dismissed as withdrawn by order dated 28.06.2019. Thereafter, Thenmurugan filed Cr.M.P.(MD) No. 1413 of 2019 before the Principal District and Sessions Judge, Sivagangai. An affidavit was filed in support of the said petition. In paragraph' No. 9 of the said affidavit, Thenmurugan solemnly affirmed that he had not filed any similar bail petition before the High Court or any other Court earlier. 3. The petition for anticipatory bail was taken up for consideration by the learned Sessions Judge, Sivagangai, on 03.07.2019. Interestingly, the Public Prosecutor did not seriously object to grant of anticipatory bail. Considering the facts and circumstances, the learned Sessions Judge granted anticipatory bail to Thenmurugan. This Criminal Original petition has been filed by the defacto complainant for canceling the order passed by the learned Sessions Judge granting the relief of anticipatory bail. 4. Heard the learned counsel on either side. 5. The learned counsel appearing for the accused/respondent No. 1, had no explanation with regard to the averment made in paragraph No. 9 of the affidavit filed in support of the petition for anticipatory bail before the Court below. In other words, the fact that the accused had suppressed the filing of the petition for anticipatory bail before this Court stands unrebutted. 6. Any litigant who approaches the Court of Law for relief must come with clean hands. If it turns out that he comes with unclean hands, he ought to be non-suited at the very threshold. In this case, the first respondent herein had obviously moved the Court below with unclean hands. 7. A more serious question of law as to the very maintainability of his petition for anticipatory bail before the Sessions Court also arises. If it turns out that he comes with unclean hands, he ought to be non-suited at the very threshold. In this case, the first respondent herein had obviously moved the Court below with unclean hands. 7. A more serious question of law as to the very maintainability of his petition for anticipatory bail before the Sessions Court also arises. Though the learned Government Advocate submitted that the investigating officer ought to have informed the learned Sessions Judge about the dismissal of Crl. O.P.(MD) No. 7760 of 2019 by this Court on 28.06.2019, he brought to my attention a recent decision of the Hon'ble Supreme Court made in CA. No. 1221 of 2019 (Sharad V. The State of Maharashtra and another), dated 08.08.2019 which reads as follows:- "Having carefully scrutinized the material available on record, we are of the considered view that the High Court has passed the impugned order, without application of its mind, by revoking the bail granted to the appellant by the Additional Sessions Judge-3, Nagpur in Misc. Criminal Application No. 1847 of 2017, on the ground that the application was not maintainable before the Trial Court as the appellant previously approached the High Court for bail and subsequently withdrew the bail application. It may be mentioned in this connection that there is no provision in the Code of Criminal Procedure, 1973 or law laid down by this Court that once an accused has withdrawn his bail application before the High Court, he cannot file a subsequent bail application before the Sessions Court and that his subsequent bail application would lie before the High Court only. Thus, the impugned order of the High Court is not sustainable in the eyes of law and deserves to be set aside. In view of the above, we set aside the impugned order of the High Court revoking the bail granted to the appellant by the Sessions Court. Order dated 20.9.2017 passed by the Additional Sessions Judge-3, Nagpur in Misc. Criminal Application No. 1847 of 2017 granting bail to the appellant is hereby restored." 8. Now the question that arises for consideration is whether the order granting anticipatory bail to the respondent can be sustained. 9. The aforesaid decision will not come to the rescue of the first respondent. We are not concerned with a case of bail. The case on hand pertains to anticipatory bail. Now the question that arises for consideration is whether the order granting anticipatory bail to the respondent can be sustained. 9. The aforesaid decision will not come to the rescue of the first respondent. We are not concerned with a case of bail. The case on hand pertains to anticipatory bail. The law on this point as far as the State of Tamil Nadu is concerned is rather well settled. Vide order dated 05.09.2017, a learned Judge of this Court in Crl.O.P.(MD) No. 2533 of 2017 in Cr.M.P. No. 241 of 2017 held that an accused cannot make an application for anticipatory bail before the Sessions Court once it was dismissed by the High Court. The fact that the earlier one was dismissed as withdrawn will not make any difference. The Division Bench of Kerala High Court in the decision reported in (2014) 3 Crimes(HC) 579 (Aneesh Vs. State of Kerala) held that when a second application for anticipatory bail is made after withdrawing the first application, the Court would consider the question whether the applicant was justified in withdrawing the earlier application or whether he was only gaining time or was indulging in forum shopping. The Court has every discretion to deal with the application and consider whether the relief should be granted or not in the facts and circumstances of the case. 10. The Hon'ble Division Bench of the Karnataka High Court in the decision reported in (1989) Crl. Law Journal 2405 (I.Y. Chandra Earappa Vs. State of Karnataka) held that since the Court of Sessions is subordinate to the High Court, a party who makes an application under Section 438 of the Code before the Sessions Court could approach the High Court, if his application had been rejected by the Court of Sessions, but not vice versa. In other words, if the party chooses to file an application under Section 438 of the Code before the High Court and it is rejected, he cannot thereafter approach the Court of Sessions under the same provision and on the same grounds. 11. This position was reiterated by the Hon'ble Apex Court recently in C.A. No. 870 of 2019 (M/s. Gati Limited V.T. Nagarajan Piramiajee and Another), dated 06.05.2019 after referring to the earlier decisions. The Hon'ble Supreme Court held as follows:- "5.... 11. This position was reiterated by the Hon'ble Apex Court recently in C.A. No. 870 of 2019 (M/s. Gati Limited V.T. Nagarajan Piramiajee and Another), dated 06.05.2019 after referring to the earlier decisions. The Hon'ble Supreme Court held as follows:- "5.... This Court in the case of Shahzad Hasan Khan v. Ishtiaq Hasan Khan, (1987) 2 SCC 684 , in a similar matter concerning filing of successive applications for anticipatory bail, made the following observations: '5....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 matters must be placed before the same Judge, if he is available for orders...' In State of Maharashtra v. Captain Buddhikota Subha Rao, 1989 Supp (2) SCC 605, this Court placing reliance upon Shahzad Hasan Khan (supra) observed: '7... In such a situation the proper course, we think, is to direct that the matter be placed before the same learned Judge who disposed of the earlier applications. Such a practice or convention would prevent abuse of the process of court inasmuch as it will prevent an impression being created that a litigant is avoiding or selecting a court to secure an order to his liking. Such a practice would also discourage the filing of successive bail applications without change of circumstances. Such a practice if adopted would be conducive to judicial discipline and would also save the Court's time as a Judge familiar with the facts would be able to dispose of the subsequent application with despatch. It will also result in consistency...' At the risk of repetition, we would like to quote similar observations made by this Court on subsequent occasions. It will also result in consistency...' At the risk of repetition, we would like to quote similar observations made by this Court on subsequent occasions. In the case of Vikramjit Singh v. State of Madhya Pradesh, 1992 Supp (3) SCC 62, this Court observed: '3.... Otherwise a party aggrieved by an order passed by one bench of the High Court would be tempted to attempt to get the matter reopened 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 assuring the binding nature of an order which becomes final, and the faith of the people in the judiciary...' To the same effect, this Court observed in M. Jagan Mohan Rao v. RV. Mohan Rao, (2010) 15 SCC 491: '3. In view of the principle laid down by this Court, since the learned Judge who had refused bail in the first instance was available, the matter should have been placed before him. This Court has indicated that such cases of successive bail applications should be placed before the same Judge who had refused bail in the first instance, unless that Judge is not available...' In Jagmohan Bahl and Another v. State (NCT of Delhi) and Another, (2014) 16 SCC 501 too, this Court has observed along the same lines: 15... when the Sixth Additional Sessions Judge had declined to grant the bail application, the next Fourth Additional Sessions Judge should have been well advised to place the matter before the same Judge. However, it is the duty of the prosecution to bring it to the notice of the Judge concerned that such an application was rejected earlier by a different Judge and he was available. In the entire adjudicatory process, the whole system has to be involved. The matter would be different if a Judge has demitted the office or has been transferred. Similarly, in the trial court, the matter would stand on a different footing, if the Presiding Officer has been superannuated or transferred. The fundamental concept is, if the Judge is available, the matter should be heard by him. That will sustain the faith of the people in the system and nobody would pave the path of forum shopping, which is decry able in law." 12. The fundamental concept is, if the Judge is available, the matter should be heard by him. That will sustain the faith of the people in the system and nobody would pave the path of forum shopping, which is decry able in law." 12. When a petition for anticipatory bail is disposed of by one particular Judge of the High Court, if he is available any subsequent petition for anticipatory bail also should be listed and placed before the very same Judge. It cannot go to another Judge of the High Court. If another Judge of the High Court cannot deal with a subsequent petition for anticipatory bail, I fail to understand as to how a subsequent anticipatory bail can be maintainable before the Sessions Court. The irresistible inference is that once a petition for anticipatory bail is disposed by the High Court whether on merits or dismissed as withdrawn, subsequent petition for anticipatory bail before the Sessions Court would simply not lie. This has been the consistent position of law enunciated by the Madras High Court. This alone will foreclose the pernicious practice of forum shopping adopted by unscrupulous litigants. 13. I must also necessarily record the fact that the learned Sessions Judge, Sivagangai District, was not at all informed about the act of forum shopping resorted to by the accused. 14. In this view of the matter, the order impugned in this Criminal Original petition is set aside, as the petition filed before the Sessions Court was not maintainable. The Criminal Original petition stands allowed.