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2024 DIGILAW 2542 (ALL)

B. K. Tiwari v. State Of U. P.

2024-12-17

ASHWANI KUMAR MISHRA, SANJAY KUMAR SINGH

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JUDGMENT : Ashwani Kumar Mishra, J. 1. Conflict of opinion expressed by two learned Single Judges of this Court regarding maintainability of bail application before the High Court under Section 389 (2) Cr.P.C., in a criminal appeal pending before the court subordinate to it, has led to this matter being placed before us pursuant to the orders passed by Hon’ble the Chief Justice. 2. We have heard Sri Syed Imran Ibrahim and Sri Aushim Luthra, learned counsel for the applicant and Sri Pankaj Kumar Tripathi, learned AGA for the State. 3. Facts giving rise to the present proceedings lie in a narrow compass. Criminal proceedings came to be initiated against the present applicant under Section 409 IPC pursuant to FIR lodged in Case Crime No.519 of 2005, Police Station Kalyanpur, District Kanpur Nagar on 3.8.2005. On conclusion of investigation in this case the prosecution submitted charge-sheet whereafter trial commenced against the applicant in Case No.10596 of 2009. The proceedings culminated in conviction of applicant vide judgment dated 23.1.2016. On 27.1.2016 the applicant was sentenced to six years rigorous imprisonment alongwith fine of Rs.5,000/- and the default sentence was of simple imprisonment for one year. Aggrieved by his conviction and sentence the applicant preferred Criminal Appeal No.15 of 2016 (B.K. Tewari Vs. State of U.P.), under Section 409 IPC, arising out of case crime no. 519 of 2005, Police Station Kalyanpur, District Kanpur Nagar pending in the Court of learned Session Judge, Kanpur. An application for bail was also filed in the appeal which came to be rejected on 4.2.2016. 4. The order rejecting applicant’s bail application by the appellate court came to be challenged before this Court in Criminal Revision No.427 of 2016. This revision was got dismissed as not pressed with liberty to seek relief before the appropriate court. 5. Yet another Criminal Revision no.560 of 2016 was preferred by the applicant challenging the order dated 4.2.2016. The maintainability of this revision was questioned by the informant/State. The revisional court held that a criminal revision against the order passed on bail application whether allowing, rejecting or cancelling the bail is not amenable to revisional jurisdiction of this Court. 6. It is thereafter that the applicant invoked jurisdiction of this Court under Section 482 Cr.P.C. for challenging the order dated 4.2.2016. The revisional court held that a criminal revision against the order passed on bail application whether allowing, rejecting or cancelling the bail is not amenable to revisional jurisdiction of this Court. 6. It is thereafter that the applicant invoked jurisdiction of this Court under Section 482 Cr.P.C. for challenging the order dated 4.2.2016. The applicant also sought release on bail by exercising the inherent powers of this Court under Section 482 Cr.P.C. This matter was heard by a learned Single Judge of this Court who passed a detailed order in the matter on 27.4.2016. The order of learned Single Judge is relevant for the present purposes and is reproduced hereinafter:- ”……….The background of filing this application appears to be this that the accused-applicant after facing the trial in the lower court was convicted to undergo sentence of imprisonment for 6 years along with a fine of Rs.5000/- vide judgment and order dated 23.01.2016 passed by the A.C.M.M., Court No.2, Kanpur Nagar. Aggrieved by this judgment of conviction the accused preferred a Criminal Appeal No.15 of 2016 in the Court of Sessions Judge, Kanpur Nagar. This appeal has been admitted and is still pending for its final adjudication. But the bail application which was moved on behalf of the accused in the lower appellate court after conviction, has been rejected vide order dated 4.2.2016. It is this order of rejection passed by the learned Sessions Judge, which has been challenged in this Court by way of filing this application u/s 482 of Cr.P.C. As the filing of an application u/s 482 Cr.P.C. and thereby invoking the inherent jurisdiction of this Court with regard to the prayers made in this application i.e., the prayer of seeking the release of accused on bail and the other prayer of seeking the quashing of bail rejection order passed by the Sessions Judge, both looked quite anomalous, a query was raised by the Court in this regard. The counsel was asked to explain as to why the normal statutory provisions to get bail as have been provided under the Code of Criminal Procedure have not been invoked and as to what has prompted or necessitated the counsel to undertake the extra-ordinary course of filing this application u/s 482 of Cr.P.C. for the purposes of seeking such conventional relief of bail. In response to the query raised by the Court, counsel appearing for the applicant has submitted that actually the same legal course was initially adopted and an application u/s 389(2) of Cr.P.C. was drafted and filed on behalf of the accused. But the same was not accepted by the Registry of this Court. The reason offered by the officials of the Registry was that till then the Registry was not having any appropriate head or the adequate category in the system of computers under which such an application may be accepted. According to the counsel, when the Registry declined to accept the application, a revision on behalf of the applicant against the impugned order was filed in the High Court as Criminal Revision No.427 of 2016. But for certain reasons the same was not pressed and was got dismissed with liberty to seek appropriate relief from appropriate court. Later on another Criminal Revision No.560 of 2016 was filed on behalf of accused against the impugned bail rejection order passed by lower appellate court. But another bench of this Court exercising the revisional jurisdiction vide its order dated 4.3.2016 was pleased to dismiss the revision after holding the same to be not maintainable. According to the counsel it was in this background that the applicant felt compelled to move present application seeking inherent jurisdiction of this Court. Applicant's counsel has been fair enough to concede that there is specific provision u/s 389(2) provided in the Code of Criminal Procedure whereby the High Court has been conferred with the powers to grant bail in such matters to an accused who has filed his appeal in lower Appellate Court after conviction. But it was primarily because of the refusal of the Registry to accept such application moved u/s 389(2) of Cr.P.C. that he had to come up to this Court seeking the extra-ordinary remedy by invoking the inherent powers of the Court. Shri G.S. Chaturvedi, learned senior counsel appearing for opposite party has also been heard who too has emphasized upon the applicability of aforesaid Section 389 (2) of Cr.P.C. in such matters and has also reiterated the same legal aspect of the matter. It was submitted that the Registry should be directed to take necessary steps in this regard which must accept the proper application under proper provisions of law in this regard. It was submitted that the Registry should be directed to take necessary steps in this regard which must accept the proper application under proper provisions of law in this regard. It shall also not be out of place to mention here at this stage that when the matter was placed before this Court for the first time the court had thought it fit to call the officials of registry in this regard in order to ascertain correct factual situation. The officials did not contradict the information furnished by the senior counsel and the court was made to know that the application of the applicant moved u/s 389(2) of Cr.P.C. was indeed not accepted by the registry for want of the necessary systems in computer. I have perused the entire record in the light of the submissions made at the bar and have also heard Shri Vimlendu Tripathi, learned A.G.A. It may be relevant to extract the relevant provisions in this regard, which read as under : 389. Suspension of sentence pending the appeal; release of appellant on bail. (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. [Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offfence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release: Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.] (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto. (3) .................… (4) ..................… A bare perusal of the aforesaid provisions would be sufficient to indicate that the power with regard to granting or rejecting the bail exercisable by the lower appellate court can very well be exercised by the High Court also, by virtue of sub-section (2) of Section 389 of Cr.P.C. If an appeal by a convicted person is filed in a court subordinate to High Court then the powers which the subordinate court of appeal would exercise are concurrent with the powers of the High Court in this regard by virtue of 389(2) of Cr.P.C. In fact just as has been provided by Section 439 of Cr.P.C. that a High court or a court of Session both may direct the release of an under trial accused on bail, similarly in case of an appeal filed by a convicted accused also the power of the subordinate appellate court with regard to bail can also be exercised by the High Court to whom the lower appellate court is subordinate to. There does not appear to be any ambiguity with regard to the aforesaid provisions. This court is also in complete agreement with the view taken by another Bench of this Court that the remedy to get bail can not be obtained by the accused by way of filing a revision against the bail rejection order. The same has been rightly held to be an interlocutory order. When an under trial accused approaches this Court after getting his bail rejected from the Sessions court and when the High Court grants bail to him, it is not in exercise of any revisional jurisdiction u/s 397 of Cr.P.C. but it is u/s 439 of Cr.P.C. that the High Court acts. Bail is granted by the High Court on the strength of its own independent powers to grant bail which have been bestowed upon it by the legislature. So far as the refusal of Registry to accept the application moved on behalf of the convicted accused u/s 389(2) of Cr.P.C. is concerned, the same cannot be vindicated on the ground of any pragmatic difficulties which the Registry might be facing in this regard. If appropriate categories have not been carved out in this regard as yet, the Registry can always do so now. If appropriate categories have not been carved out in this regard as yet, the Registry can always do so now. If appropriate systems are to be generated or improvised upon in this regard the same must also be done by the Registry. If there is a statutory remedy provided under law, it is the right of a person to invoke and seek the same. This Court does not feel persuaded to invoke or exercise its inherent jurisdiction for the purposes of granting the normal statutory reliefs which have been provided under law. The statutory schemes of law and the statutory remedies cannot and should not be bypassed in ordinary course. The inherent jurisdiction u/s 482 of Cr.P.C. is little known to be used for the purposes of releasing an accused on bail. There are sufficient statutory provisions provided for this purpose in the Code of Criminal Procedure and they must be adhered to. In this regard the alleged inconvenience which the Registry might confront in generating the requisite systems or in doing the needful in this regard cannot constitute a good ground for this Court to exercise its inherent jurisdiction. It is almost ironical and not little embarrassing to see that an accused in custody has been shuttling from pillar to post, from one court to another in the quest of justice for no fault which may be attributed to him. The period of incarceration is being perpetuated not because the Court has not found it fit to release him on bail but because the existing technical systems generated in the computers could not prove equal to the requirement of the situation. The registry must rise to the occasion and address the problem in right earnest. This Court can ill-afford to impart this impression to anyone, be he the victim or the accused, that the door's of justice were not kept ajar for him. This application, therefore, is being disposed off with the direction to the Registry of this Court to take necessary steps in this regard and do the needful forthwith. If a proper application u/s 389(2) of Cr.P.C. is moved by the accused- applicant the same shall be accepted by the Registry and shall be dealt with accordingly. Office to place a copy of this order before the Registrar General, High Court, Allahabad forthwith for necessary compliance.” 7. If a proper application u/s 389(2) of Cr.P.C. is moved by the accused- applicant the same shall be accepted by the Registry and shall be dealt with accordingly. Office to place a copy of this order before the Registrar General, High Court, Allahabad forthwith for necessary compliance.” 7. It is thereafter that the applicant preferred an application under Section 389 (2) Cr.P.C. being Criminal Misc. Application No.1 of 2016. This matter was then placed before a different Hon’ble Judge, who doubted the maintainability of this application on the ground that such application for bail before the High Court would curtail or abrogate the powers of subordinate court to entertain subsequent bail applications, rather than creating a new field or vision to entertain bail application under Section 389 (2) Cr.P.C. Accordingly, the later Hon’ble Judge referred the matter for consideration of the cause by a larger Bench. The order dated 20.1.2017, passed by learned Single Judge doubting correctness of the previous order, is reproduced:- ”……….. Applicant's counsel has been fair enough to concede that there is specific provision u/s 389(2) provided in the Code of Criminal Procedure whereby the High Court has been conferred with the powers to grant bail in such matters to an accused who has filed his appeal in lower Appellate Court after conviction. But it was primarily because of the refusal of the Registry to accept such application moved u/s 389(2) of Cr.P.C. that he had to come up to this Court seeking the extra-ordinary remedy by invoking the inherent powers of the Court. Shri G.S. Chaturvedi, learned senior counsel appearing for opposite party has also been heard who too has emphasized upon the applicability of aforesaid Section 389 (2) of Cr.P.C. in such matters and has also reiterated the same legal aspect of the matter. It was submitted that the Registry should be directed to take necessary steps in this regard which must accept the proper application under proper provisions of law in this regard. It shall also not be out of place to mention here at this stage that when the matter was placed before this Court for the first time the court had thought it fit to call the officials of registry in this regard in order to ascertain correct factual situation. It shall also not be out of place to mention here at this stage that when the matter was placed before this Court for the first time the court had thought it fit to call the officials of registry in this regard in order to ascertain correct factual situation. The officials did not contradict the information furnished by the senior counsel and the court was made to know that the application of the applicant moved u/s 389(2) of Cr.P.C. was indeed not accepted by the registry for want of the necessary systems in computer. I have perused the entire record in the light of the submissions made at the bar and have also heard Shri Vimlendu Tripathi, learned A.G.A. It may be relevant to extract the relevant provisions in this regard, which read as under : 389. Suspension of sentence pending the appeal; release of appellant on bail. (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. [Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offfence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release: Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.] (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto. (3) .................… (4) ..................… A bare perusal of the aforesaid provisions would be sufficient to indicate that the power with regard to granting or rejecting the bail exercisable by the lower appellate court can very well be exercised by the High Court also, by virtue of sub-section (2) of Section 389 of Cr.P.C. If an appeal by a convicted person is filed in a court subordinate to High Court then the powers which the subordinate court of appeal would exercise are concurrent with the powers of the High Court in this regard by virtue of 389(2) of Cr.P.C. In fact just as has been provided by Section 439 of Cr.P.C. that a High court or a court of Session both may direct the release of an under trial accused on bail, similarly in case of an appeal filed by a convicted accused also the power of the subordinate appellate court with regard to bail can also be exercised by the High Court to whom the lower appellate court is subordinate to. There does not appear to be any ambiguity with regard to the aforesaid provisions. This court is also in complete agreement with the view taken by another Bench of this Court that the remedy to get bail can not be obtained by the accused by way of filing a revision against the bail rejection order. The same has been rightly held to be an interlocutory order. When an under trial accused approaches this Court after getting his bail rejected from the Sessions court and when the High Court grants bail to him, it is not in exercise of any revisional jurisdiction u/s 397 of Cr.P.C. but it is u/s 439 of Cr.P.C. that the High Court acts. Bail is granted by the High Court on the strength of its own independent powers to grant bail which have been bestowed upon it by the legislature. So far as the refusal of Registry to accept the application moved on behalf of the convicted accused u/s 389(2) of Cr.P.C. is concerned, the same cannot be vindicated on the ground of any pragmatic difficulties which the Registry might be facing in this regard. If appropriate categories have not been carved out in this regard as yet, the Registry can always do so now. If appropriate categories have not been carved out in this regard as yet, the Registry can always do so now. If appropriate systems are to be generated or improvised upon in this regard the same must also be done by the Registry. If there is a statutory remedy provided under law, it is the right of a person to invoke and seek the same. This Court does not feel persuaded to invoke or exercise its inherent jurisdiction for the purposes of granting the normal statutory reliefs which have been provided under law. The statutory schemes of law and the statutory remedies cannot and should not be bypassed in ordinary course. The inherent jurisdiction u/s 482 of Cr.P.C. is little known to be used for the purposes of releasing an accused on bail. There are sufficient statutory provisions provided for this purpose in the Code of Criminal Procedure and they must be adhered to. In this regard the alleged inconvenience which the Registry might confront in generating the requisite systems or in doing the needful in this regard cannot constitute a good ground for this Court to exercise its inherent jurisdiction. It is almost ironical and not little embarrassing to see that an accused in custody has been shuttling from pillar to post, from one court to another in the quest of justice for no fault which may be attributed to him. The period of incarceration is being perpetuated not because the Court has not found it fit to release him on bail but because the existing technical systems generated in the computers could not prove equal to the requirement of the situation. The registry must rise to the occasion and address the problem in right earnest. This Court can ill-afford to impart this impression to anyone, be he the victim or the accused, that the door's of justice were not kept ajar for him. This application, therefore, is being disposed off with the direction to the Registry of this Court to take necessary steps in this regard and do the needful forthwith. If a proper application u/s 389(2) of Cr.P.C. is moved by the accused- applicant the same shall be accepted by the Registry and shall be dealt with accordingly. Office to place a copy of this order before the Registrar General, High Court, Allahabad forthwith for necessary compliance. If a proper application u/s 389(2) of Cr.P.C. is moved by the accused- applicant the same shall be accepted by the Registry and shall be dealt with accordingly. Office to place a copy of this order before the Registrar General, High Court, Allahabad forthwith for necessary compliance. " From the above observation made by Hon'ble Single Judge in Criminal Misc. Application U/s 482 Cr.P.C. No. 8270 of 2016, the Registrar has now unravelled a new field of vision for accepting the application under section 389 (2) Cr.P.C. for consideration of bail by a convicted person whose appeal is pending before the first appellate court and bail application has been rejected. Learned counsel appearing on behalf of the opposite party no. 2 has raised objection with regard to maintainability of this application confronting that in pending appeal successive applications for bail are not barred, the principle of issued estoppel is not attracted. In the present case, the bail application of the applicant has been rejected by the first appellate court. The applicant may file successive bail applications before the court below where the appeal is pending in case the applicant satisfies the conditions laid down in clauses (i) and (ii) of the said sub-section and in case such conditions are fulfilled, the court below is fully competent to release him on bail. The order refusing the bail by the first appellate court does not preclude it to entertain the another application for bail. When the appeal is pending before the first appellate court, the High Court cannot unfold another vista for consideration of bail which will amount to usurpation of the power of this first appellate court as no appeal is pending before this Court. When the appeal is pending before the first appellate court, the High Court cannot unfold another vista for consideration of bail which will amount to usurpation of the power of this first appellate court as no appeal is pending before this Court. Section 389 (1) Cr.P.C. clearly speaks that pending any appeal by a convicted person, the appellate court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and also, if he is in confinement, that he be released on bail or on his own bond meaning thereby that the convicted person has filed appeal before the first appellate court and when the appeal is pending before the court below and the bail has been rejected thus this Court cannot exercise its power under Section 389 (2) Cr.P.C.which would amount to curtailment and abrogation of the power of first appellate court which is empowered to hear successive bail applications of a convicted person. In the similar track, Section 389 (2) Cr.P.C. is attracted which clearly demonstrates that the power conferred by this section on an appellate court may be exercised also by the High Court in the case of an appeal by a convicted person to a court subordinate thereto is preferred. From the emulous and rival contention mooted by the learned counsel for the parties, it emerges out that the exercise of power by this Court under section 389 (2) Cr.P.C.in the matter of pending appeal before the sub-ordinate court would evolve multiplicity of proceedings in the bail matters as the sub- ordinate court release the convicted person on bail or refuses the convicted person on bail, it records cogent and convincing reasons assessing the matter that this case warrants grant of bail or does not warrant grant on bail as the entire records is available with it. In such matter where the accused person has been convicted and the appeal is pending before the sub- ordinate and the bail has been rejected looking to the gravity and severity of the offence authenticated with record, the convicted person can invoke the jurisdiction of the same court by filing successive bail applications which will not preclude him from invoking the same time and again. Ordinarily, the pendency of an appeal is a condition precedent to exercise the jurisdiction under this section. Ordinarily, the pendency of an appeal is a condition precedent to exercise the jurisdiction under this section. An order on bail application is nothing more than an interlocutory and tentative expression of the conclusion as to whether a person should be set at large pending trial or disposal of his appeal and nothing more. After refusal of bail, the court is not ostracized from second consideration at a later stage. In my opinion the filing of the bail application under section 389 (2) Cr.P.C. before this Court would bestow special concern in the matter of pending appeal in the court below and would amount to curtail or abrogate the power of sub-ordinate court rather creating a new field of vision to sit as a court of appeal to entertain the bail application under section 389 (2) Cr.P.C. when the bail application has already been rejected by the court below and no appeal is pending before this Court thus this matter is referred for consideration to a larger Bench.” 8. It is in the above context that the matter has been placed before us on a reference under the orders of Hon’ble the Chief Justice. The provisions of law and the issues raised in the above two orders have been extensively analysed by us with the able assistance of learned counsel for the parties. 9. The Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code of 1973’) provides for the remedy of appeal under Chapter XXIX of the Code. Section 372 mandates that no appeal shall lie from any judgment or order of a criminal court except as is provided for by the Code or by any other law for the time being in force. Section 374 provides for appeals from convictions. Sub- section (3) of Section 374 provides for filing of appeal by any person convicted on a trial held by metropolitan magistrate or assistant Sessions Judge or Magistrate of the first class or of second class or sentenced under Section 325 or in respect of whom an order has been made or a sentence has been passed under Section 360 by any Magistrate to the court of Session. 10. Section 389 of the Code provides for suspension of sentence pending the appeal; release of appellant on bail. 10. Section 389 of the Code provides for suspension of sentence pending the appeal; release of appellant on bail. Sub-section 1 provides that pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. Proviso to sub-section 1 of Section 389 Cr.P.C. contemplates that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release; provided further that in case where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail. 11. Sub-section 2 to Section 389 Cr.P.C. provides that the power conferred by Section 389 Cr.P.C. on an Appellate Court may be exercised by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto. 12. Manner of filing of the appeal is prescribed in Section 382 and Section 383 of the Code of 1973. Section 384 of the Code of 1973 confers power of summary dismissal of appeal on the Appellate Court. Where the Appellate Court does not dismiss the appeal summarily the appeal is to be heard as per the procedure specified in Section 385 of the Code of 1973. Powers of the Appellate Court are prescribed under Section 386 of the Code of 1973. It is in the above context that the power is conferred on the Appellate Court for suspension of sentence pending appeal as well as release of appellant on bail. 13. Section 389 of the Code of 1973 apart from conferring jurisdiction upon the High Court to suspend sentence pending the appeal and direct release of appellant on bail where appeal is preferred before it against the judgment of conviction and sentence also confers such power of an Appellate Court, upon the High Court, where the appeal by a convicted person is to a Court subordinate thereto. 14. 14. Statutory scheme is, therefore, abundantly clear that even in case of an appeal filed by a convicted person to a Court sub-ordinate to the High Court, the power conferred on the appellate court under Section 389 (1) of the Code of 1973 may also be exercised by the High Court by virtue of sub-section (2). 15. Consequently, even in case where appeal is pending to a Court subordinate to the High Court the power to suspend the sentence pending adjudication in appeal filed before such subordinate court can also be exercised by the High Court. Jurisdiction of Appellate Court to suspend the sentence pending appeal and release the appellant on bail, plainly speaking, would be concurrently available with the Appellate Court and also to the High Court where the appeal is to a Court sub-ordinate to the High Court. 16. Learned Single Judge who heard the application under Section 482 Cr.P.C. observed that the remedy to secure bail cannot be obtained by an accused by filing a revision against the bail rejection order on the ground that such order is interlocutory in nature. Learned Judge also observed that bail is granted by a High Court on account of its own independent power bestowed by the legislature. The Court took note of the fact that registry was not entertaining the application for bail under Section 389 (2) of the Code of 1973 only because appropriate category court was not created for the purpose. The Court, therefore, observed that where statutory remedy is provided under law, it is the right of the person to invoke such remedy. Pursuant to the aforesaid direction issued on 27.4.2016 by learned Single Judge in application under Section 482 of the Code of 1973 the registry did register Criminal Misc. Application under Section 389 (2) Cr.P.C. No.1 of 2016 17. When the application under Section 389 (2) of the Code of 1973 was presented before the later Hon’ble Judge the Court expressed doubts with regard to correctness of the view taken by the earlier Bench on the ground that a person convicted had the right to file successive application for bail, during pendency of the appeal, since the principle of issue estoppel is not attracted. The Court observed that entertainment of bail application by the High Court during pendency of appeal before the Court subordinate to it would unfold another vista for consideration of bail which will amount to usurpation of the power of the appellate court, particularly when no appeal was pending before the High Court. Learned Single also opined that entertainment of bail application under Section 389 (2) of the Code of 1973 would result in multiplicity of proceedings in bail matters. It also observed that pendency of appeal is a condition precedent for exercise of jurisdiction under Section 389 (2) of the Code of 1973. Upon refusal of bail, in the opinion of the referring Judge, the appellate court is not denuded of jurisdiction to entertain a second application for bail at a later stage, in an appropriate case. 18. Appeal is a creature of statute. Similarly right to apply for bail in pending appeal is also a statutory creation. In our considered opinion, it is for the legislature to provide as to in what manner a convicted accused can apply for bail in a pending appeal. It is always open for the legislature to provide for an additional higher forum for an accused to seek bail. 19. Right to seek bail by a convicted accused during pendency of his appeal although is a statutory right but it has important constitutional ramifications as it impacts the convict’s right to life and liberty guaranteed under the Constitution. The deprivation of liberty can only be in accordance with law. If the law provides for an additional remedy of bail to an accused then such right cannot be curtailed, lightly. It is otherwise for the legislature to create additional higher forum for grant of bail to an accused. Once such a right is created, in law, by the competent legislature, there would hardly be a justification for this Court to curtail such remedy, when the statute is otherwise clear and categorical. 20. Personal liberty and access to justice have been jealously protected by the Constitutional courts. A Constitution Bench of the Supreme Court in Anikta Kushwaha vs. Pushap Sudan , (2016) 8 SCC 509 had examined the constitutional scheme and held that access to justice is encompassed in the right to life enshrined under Article 21 of the Constitution of India. 20. Personal liberty and access to justice have been jealously protected by the Constitutional courts. A Constitution Bench of the Supreme Court in Anikta Kushwaha vs. Pushap Sudan , (2016) 8 SCC 509 had examined the constitutional scheme and held that access to justice is encompassed in the right to life enshrined under Article 21 of the Constitution of India. The Supreme Court clearly observed so in para 31,33,35 and 38, which are re-produced:- “31. Given the fact that pronouncements mentioned above have interpreted and understood the word “life” appearing in Article 21 of the Constitution on a broad spectrum of rights considered incidental and/or integral to the right to life, there is no real reason why access to justice should be considered to be falling outside the class and category of the said rights, which already stands recognised as being a part and parcel of Article 21 of the Constitution of India. If “life” implies not only life in the physical sense but a bundle of rights that makes life worth living, there is no juristic or other basis for holding that denial of “access to justice” will not affect the quality of human life so as to take access to justice out of the purview of right to life guaranteed under Article 21. We have, therefore, no hesitation in holding that access to justice is indeed a facet of right to life guaranteed under Article 21 of the Constitution. We need only add that access to justice may as well be the facet of the right guaranteed under Article 14 of the Constitution, which guarantees equality before law and equal protection of laws to not only citizens but non- citizens also. We say so because equality before law and equal protection of laws is not limited in its application to the realm of executive action that enforces the law. It is as much available in relation to proceedings before courts and tribunal and adjudicatory fora where law is applied and justice administered. The citizen's inability to access courts or any other adjudicatory mechanism provided for determination of rights and obligations is bound to result in denial of the guarantee contained in Article 14 both in relation to equality before law as well as equal protection of laws. The citizen's inability to access courts or any other adjudicatory mechanism provided for determination of rights and obligations is bound to result in denial of the guarantee contained in Article 14 both in relation to equality before law as well as equal protection of laws. Absence of any adjudicatory mechanism or the inadequacy of such mechanism, needless to say, is bound to prevent those looking for enforcement of their right to equality before laws and equal protection of the laws from seeking redress and thereby negate the guarantee of equality before laws or equal protection of laws and reduce it to a mere teasing illusion. Article 21 of the Constitution apart, access to justice can be said to be part of the guarantee contained in Article 14 as well. 33. Four main facets that, in our opinion, constitute the essence of access to justice are: (i) the State must provide an effective adjudicatory mechanism; (ii) the mechanism so provided must be reasonably accessible in terms of distance; (iii) the process of adjudication must be speedy; and (iv) the litigant's access to the adjudicatory process must be affordable. 35 [Ed. : Para 35 corrected vide Official Corrigendum No. F.3/Ed.B.J./97/2016 dated 13-7-2017.] . The forum/mechanism so provided must, having regard to the hierarchy of courts/tribunals, be reasonably accessible in terms of distance for access to justice since so much depends upon the ability of the litigant to place his/her grievance effectively before the court/tribunal/court/competent authority to grant such a relief. (See D.K. Basu v. State of W.B. [D.K. Basu v. State of W.B., (2015) 8 SCC 744 : (2015) 3 SCC (Cri) 824] ) 38. Access to justice will again be no more than an illusion if the adjudicatory mechanism provided is so expensive as to deter a disputant from taking resort to the same. Article 39-A of the Constitution promotes a laudable objective of providing legal aid to needy litigants and obliges the State to make access to justice affordable for the less fortunate sections of the society.” 21. There is no ambiguity in the applicable statute i.e. the Code of 1973, which clearly provides for remedy of bail before High Court in a case where the appeal of a convicted accused is pending before a Court sub-ordinate to the High Court. There is no ambiguity in the applicable statute i.e. the Code of 1973, which clearly provides for remedy of bail before High Court in a case where the appeal of a convicted accused is pending before a Court sub-ordinate to the High Court. The position is somewhat analogous to Section 439 of the Code of 1973 which provides for bail by the High Court in a case where trial is pending before the Court of Sessions. In such eventuality also the legislature has conferred concurrent jurisdiction both upon the Court of Sessions where the trial is pending and also upon the High Court, even though the trial is not pending before it, to grant bail to the under-trial. Section 389 (2) of the Code of 1973 similarly provisions remedy of bail before High Court even though the appeal against the judgment of conviction is pending before the court of Sessions. There does not appear to be any unreasonableness in such a scheme. 22. Remedies in law, to seek bail before a higher forum while lis is pending before a subordinate court is clearly a permissible course when the statute so provides. No exception can be taken to it. 23. In taking the above view, we are conscious of the principles applicable for statutory interpretation, which is by now well settled. In the judgment of Supreme Court in Nathi Devi Vs. Radha Devi Gupta (2005) 2 SCC 271 the Supreme Court observed as under:- “13. The interpretative function of the court is to discover the true legislative intent. It is trite that in interpreting a statute the court must, if the words are clear, plain, unambiguous and reasonably susceptible to only one meaning, give to the words that meaning, irrespective of the consequences. Those words must be expounded in their natural and ordinary sense. When the language is plain and unambiguous and admits of only one meaning, no question of construction of statute arises, for the Act speaks for itself. Courts are not concerned with the policy involved or that the results are injurious or otherwise, which may follow from giving effect to the language used. If the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. If the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In considering whether there is ambiguity, the court must look at the statute as a whole and consider the appropriateness of the meaning in a particular context avoiding absurdity and inconsistencies or unreasonableness which may render the statute unconstitutional. 14. It is equally well settled that in interpreting a statute, effort should be made to give effect to each and every word used by the legislature. The courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. A construction which attributes redundancy to the legislature will not be accepted except for compelling reasons such as obvious drafting errors. (See State of U.P. v. Dr. Vijay Anand Maharaj [ AIR 1963 SC 946 : (1963) 1 SCR 1 ] , Rananjaya Singh v. Baijnath Singh [ AIR 1954 SC 749 : (1955) 1 SCR 671 ] , Kanai Lal Sur v. Paramnidhi Sadhukhan [ AIR 1957 SC 907 : 1958 SCR 360 ] , Nyadar Singh v. Union of India [ (1988) 4 SCC 170 : 1988 SCC (L&S) 934 : (1988) 8 ATC 226 : AIR 1988 SC 1979 ] , J.K. Cotton Spg. and Wvg. Mills Co. Ltd. v. State of U.P. [ AIR 1961 SC 1170 ] and Ghanshyamdas v. CST [ AIR 1964 SC 766 : (1964) 4 SCR 436 ] .) 15. It is well settled that literal interpretation should be given to a statute if the same does not lead to an absurdity. 16. In Nasiruddin v. Sita Ram Agarwal [ (2003) 2 SCC 577 ] this Court stated the law in the following terms: (SCC p. 589, para 37) “37. The court's jurisdiction to interpret a statute can be invoked when the same is ambiguous. It is well known that in a given case the court can iron out the fabric but it cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of the provision is plain and unambiguous. The court's jurisdiction to interpret a statute can be invoked when the same is ambiguous. It is well known that in a given case the court can iron out the fabric but it cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of the provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot rewrite or recast legislation. It is also necessary to determine that there exists a presumption that the legislature has not used any superfluous words. It is well settled that the real intention of the legislation must be gathered from the language used. It may be true that use of the expression ‘shall or may’ is not decisive for arriving at a finding as to whether the statute is directory or mandatory. But the intention of the legislature must be found out from the scheme of the Act. It is also equally well settled that when negative words are used the courts will presume that the intention of the legislature was that the provisions are mandatory in character.” 17. Even if there exists some ambiguity in the language or the same is capable of two interpretations, it is trite that the interpretation which serves the object and purport of the Act must be given effect to. In such a case the doctrine of purposive construction should be adopted. (See Swedish Match AB v. Securities & Exchange Board of India [ (2004) 11 SCC 641 : (2004) 7 Scale 158 ] .) 18. In High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat [(2003) 4 SCC 712 : 2003 SCC (L&S) 565] this Court held: (SCC p. 733, paras 35-36) “35. The court while interpreting the provision of a statute, although, is not entitled to rewrite the statute itself, is not debarred from ‘ironing out the creases’. The court should always make an attempt to uphold the rules and interpret the same in such a manner which would make it workable. 36. It is also a well-settled principle of law that an attempt should be made to give effect to each and every word employed in a statute and such interpretation which would render a particular provision redundant or otiose should be avoided.”” 24. In State of Haryana Vs. 36. It is also a well-settled principle of law that an attempt should be made to give effect to each and every word employed in a statute and such interpretation which would render a particular provision redundant or otiose should be avoided.”” 24. In State of Haryana Vs. Suresh (2007) 15 SCC 186 , the Supreme Court has reiterated the position in law, by observing as under:- “8. One of the basic principles of interpretation of statutes is to construe them according to plain, literal and grammatical meaning of the words. If that is contrary to, or inconsistent with, any express intention or declared purpose of the statute, or if it would involve any absurdity, repugnancy or inconsistency, the grammatical sense must then be modified, extended or abridged, so far as to avoid such an inconvenience, but no further. The onus of showing that the words do not mean what they say lies heavily on the party who alleges it. He must advance something which clearly shows that the grammatical construction would be repugnant to the intention of the Act or lead to some manifest absurdity (see Craies on Statute Law, 7th Edn., pp. 83-85). In the well-known treatise — Principles of Statutory Interpretation by Justice G.P. Singh, the learned author has enunciated the same principle that the words of the statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context or in the object of the statute to suggest the contrary (see the Chapter — ‘The Rule of Literal Construction’, p. 78, 9th Edn.). This Court has also followed this principle right from the beginning. In Jugalkishore Saraf v. Raw Cotton Co. Ltd. [ AIR 1955 SC 376 ] S.R. Das, J. said : (AIR p. 381, para 6) ‘The cardinal rule of construction of statutes is to read the statute literally, that is, by giving to the words used by the legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning the court may adopt the same. But if no such alternative construction is possible, the court must adopt the ordinary rule of literal interpretation.’” 25. In Bakhra Beas Management Board Vs. If, however, such a reading leads to absurdity and the words are susceptible of another meaning the court may adopt the same. But if no such alternative construction is possible, the court must adopt the ordinary rule of literal interpretation.’” 25. In Bakhra Beas Management Board Vs. Krishan Kumar (2010) 8 SCC 701 , the Supreme Court again observed as under:- ”32. It has been stated by Lord Dunedin, in Murray v. IRC [1918 AC 541 (HL)] , AC at p. 553 that: “… It is our duty to make what we can of statutes, knowing that they are meant to be operative, and not inept, and nothing short of impossibility should in my judgment allow a Judge to declare a statute unworkable.” The principle was reiterated by him in a later judgment in Whitney v. IRC [1926 AC 37 (HL)] , AC at p. 52, where he observed: “… A statute is designed to be workable, and the interpretation thereof by a court should be to secure that object, unless crucial omission or clear direction makes that end unattainable. 33. The aforesaid observations make it abundantly clear that the courts will, therefore, reject the construction which is likely to defeat the plain intention of the legislature even though there may be some inexactitude in the language used. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation should be avoided. In view of this, to attain the fruitful results of the 1990 Order we have to give it a meaningful and proper construction which would achieve the object for which it was passed, rather than to give a narrower construction which may defeat the very purpose of passing the said order.” 26. We find the language employed in Section 389 (2) of the Code of 1973 to be clear and categorical and no ambiguity is observed therein nor the provision is found to be inconsistent with the scheme of the Code of 1973. In such circumstances, there would hardly be any scope for this Court to restrict its applicability or deny the remedy of seeking bail before the High Court where appeal against conviction is pending before the court sub-ordinate to it. 27. In such circumstances, there would hardly be any scope for this Court to restrict its applicability or deny the remedy of seeking bail before the High Court where appeal against conviction is pending before the court sub-ordinate to it. 27. The applicable principles of statutory interpretation, discussed in the judgments referred to above, do not permit this Court to restrict the applicability of statutory provision for bail, made by the competent legislature, which confers valuable safeguard for protection of liberty of a convicted accused. 28. The only reason indicated by the referring Judge, in its subsequent order for doubting the correctness of the view expressed in the earlier order is that the right of the appellate court to entertain subsequent application for bail, in the same case, would be curtailed. 29. With utmost respect to the referring Judge, we do not concur with view so expressed. The reason for it is not far to seek. 30. When the appellate court rejects the bail application in pending criminal appeal the convicted accused is not provided with any remedy of bail, at that stage, before the appellate court. It is only with the change of circumstances that a fresh application can be instituted before the same court. 31. However, the convicted accused is conferred the right to seek bail before the higher forum i.e. the High Court, by virtue of Section 389 (2) of the Code of 1973. This, in our view, is an additional remedy for bail available to a convicted accused even after his bail application is rejected by the subordinate appellate court. 32. Moving of fresh bail application after rejection of earlier application by the subordinate appellate court, before the same court, is distinct from the right of the convicted accused to seek bail before the higher forum i.e. the High Court. The two cannot be equated. 33. Right to apply for bail before the High Court is an additional remedy created under the statute which cannot be curtailed only on the ground that it will restrict the right of the convicted accused to apply for bail before the subordinate appellate court. 34. We may also clarify that upon rejection of bail before the High Court a subsequent bail application on same grounds would not be maintainable before the court where appeal against conviction is pending. This is well settled. 35. 34. We may also clarify that upon rejection of bail before the High Court a subsequent bail application on same grounds would not be maintainable before the court where appeal against conviction is pending. This is well settled. 35. A Division Bench of this Court in the case of Satyapal Vs. State of U.P. reported in 1998 (2) ACC 287 has examined the question as to on what grounds a fresh bail application would lie at the instance of an undertrial accused under Section 439 Cr.P.C. In para 5 to 10 of the judgment the Court observed as under:- “5. We have heard learned counsel for the parties and have gone through the cases which were cited before the learned Single Judge as also before us. We think that the point is well settled by the judgment of the Supreme Court in the case of State of Maharashtra v. Buddhikota Subha Rao (supra). In the aforesaid judgment of the Supreme Court while disapproving grant of bail by a learned Single Judge of the High Court just after two days when a number of bail applications had been dismissed by another learned Single Judge of that Court the Supreme Court also considered various other aspects relating to the question as to under what circumstances an application for bail should be considered even when a previous application for bail had been rejected. It will be proper to quote relevant passages from paragraphs 6 and 7 of the said judgment:- "6.....The question then is whether there was justification for releasing the respondent on bail to facilitate yogic exercises under expert guidance at his residence, albeit under conditions of surveillance, even though Puranik, J. had rejected a more or less similar prayer only two days before? Should this Court refuse to exercise jurisdiction under Article 136 of the Constitution even if it is satisfied that the jurisdiction was wrongly exercised. 7. Liberty occupies a place of pride in our sociopolitical order. And who knew the value of liberty more than the founding fathers of our Constitution whose liberty was curtailed time and again under Draconian Laws by the colonial rulers. That is why they provided in Article 21 of the Constitution that no person shall be deprived of his personal liberty except according the procedure established by law. And who knew the value of liberty more than the founding fathers of our Constitution whose liberty was curtailed time and again under Draconian Laws by the colonial rulers. That is why they provided in Article 21 of the Constitution that no person shall be deprived of his personal liberty except according the procedure established by law. It follows therefore that the personal liberty of an individual can be curbed by procedure established by law. The Code of Criminal Procedure, 1973, is one such procedural law. The law permits curtailment of liberty of anti-social and anti- national elements. Article 22 casts certain obligations on the authorities in the event of arrest of an individual accused of the commission of a crime against society or the Nation. In cases of undertrials charged with the commission of an offence or offences the court is generally called upon to decide whether to release him on bail or to commit him to jail. This decision has to be made, mainly in non-bailable cases, having regard to the nature of the crime, the circumstances in which it was committed, the background of the accused, the possibility of his jumping bail, the impact that his re- lease may make on the prosecution witnesses, its impact on society and the possibility of retribution, etc. In the present case the successive bail applications preferred by the respondent were rejected on merits having regard to the gravity of the offence alleged to have been committed. Once such application No. 36 of 1989 was rejected by Suresh, J. himself. Undeterred the respondent went on preferring successive applications for bail. All such pending bail applications were rejected by Puranik, J. by a common order on 6th June, 1989. Unfortunately Puranik, J. was not aware of the pendency of yet another bail application No. 995/89 otherwise he would have disposed it of by the very same common order. Before the ink was dry on Puranik, J's order, it was upturned by the impugned order. It is not as if the court passing the impugned order was not aware of the decision of Puranik, J.; in fact there is a reference to the same in the impugned order. Could this be done in the absence of new facts and changed circumstances? It is not as if the court passing the impugned order was not aware of the decision of Puranik, J.; in fact there is a reference to the same in the impugned order. Could this be done in the absence of new facts and changed circumstances? What is important to realise is that in Criminal Application No. 375 of 1989, the respondent had made an identical request as is obvious from one of the prayers (extracted earlier) made therein. Once that application was rejected there was no question of granting a similar prayer. That is virtually overruling the earlier decision without there being a change, in the fact-situation. And, when we speak of change, we mean a substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. Between the two orders there was a gap of only two days and it is nobody's case that during these two days drastic changes had taken place necessitating the release of the respondent on bail. Judicial discipline, propriety and comity demanded that the impugned order should not have been passed reversing all earlier orders including the one rendered by Puranik, J., only a couple of days before, in the absence of any substantial change in the fact-situation. In such cases it is necessary to act with restraint and circumspection so that the process of the Court is not abused by a litigant and an impression does not gain ground that the litigant has either successfully avoided one Judge or selected another to secure an order which had hitherto eluded him. 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. 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. In this view that we take we are fortified by the observations of this Court in paragraph 5 of the judgment in Shahzad Hasan Khan v. Ishtiaq Hasan Khan. For the above reasons we are of the view that there was no justification for passing the impugned order in the absence of a substantial change in the fact-situation. That is what prompted Shetty, J. to describe the impugned order as 'a bit out of the ordinary. Judicial restraint demands that we say no more." A reading of the above mentioned passage from the judgment of the Supreme Court makes it clear that there is no bar in successive bail applications being moved for consideration by the courts. However the Supreme Court clearly observed that the practice suggested would also discourage filing of successive bail applications without change of circumstances. This observation makes it clear that it should be only when some new facts and circumstances have developed after rejection of the previous bail application then only the second bail application should be considered on merit. The learned Single Judge who referred this case to be considered by the division bench had made the following observations in his referring order.- "In my view this direction of the Supreme Court is intended at maintaining some degree of finality even to interim orders and not keeping it open to frequent change unless substantial changes in fact-situation are indicated. Otherwise our Courts including superior courts would be flooded with frivolous repeated prayers for bail as new arguments and new twists on same facts would always be advanced by legal experts. It is, therefore, necessary that a decision should be given by a higher Bench on the question if at all it would be open for a Court to allow fresh arguments on the same facts after a former prayer was although specifically the points urged in the subse- quent applications were not considered." 6. It is, therefore, necessary that a decision should be given by a higher Bench on the question if at all it would be open for a Court to allow fresh arguments on the same facts after a former prayer was although specifically the points urged in the subse- quent applications were not considered." 6. We are in complete agreement with the views expressed by the learned Single Judge and agree that a second bail application cannot be entertained on the same facts after a formal prayer was rejected although subsequently points urged in the subsequent bail applications were not considered. 7. Learned counsel for the applicant strenuously wanted to support the view taken by the learned Single Judge in the case of Gama and another v. State of U.P., (supra). We are not inclined to accept the view taken by the learned Single Judge in the said case. It is not uncommon but rather almost an accepted norm that the High Courts while rejecting the bail application do not give reasons for such rejection. Reasons are generally not given as observations tend to influence and affect the trial in pending cases. Therefore, the following observations of the learned Single Judge in the case of Gama and another v. State of U.P., (supra) does not lay down the correct law: "Even though it may be second or third bail application, but unless it is apparent from a reading of the first bail order that the point urged in the subsequent bail applications was also considered and rejected, it cannot be said that the point urged in the second or third bail application would be deemed to have been considered in the first bail application just by implication." 8. We accordingly overrule this view taken by the learned Single Judge in Gama's case (supra). 9. Learned Additional Government Advocate also wanted this Court to go into the question whether a successive bail application moved in a criminal appeal can be maintainable as particularly after conclusion of the trial no question of any new facts and circumstances can arise in such case. Since that point as such has not been specifically referred to this Bench does not appeared desirable to adjudicate on the said point at this stage. 10. Since that point as such has not been specifically referred to this Bench does not appeared desirable to adjudicate on the said point at this stage. 10. Accordingly our answer to the question referred is that fresh arguments in a second bail application for an accused cannot be allowed to be advanced on those very facts that were available to the accused while the first bail application was moved and rejected. Reference Decided Accordingly.” 36. Rationale for it is the considerations of judicial propriety. Once a higher forum has rejected the bail application of the convicted accused i.e. the High Court, the issue cannot then be re-agitated before the subordinate forum on the same material. 37. However, remedy of moving a fresh application for bail, before the subordinate appellate court, would still be available on fresh grounds, which were not available at the time of consideration of the earlier bail application by the court of sessions or the High Court. 38. It is only on the grounds that were available when the bail application was rejected by the subordinate appellate court or the High Court, as the case may be, that a second application would not lie before it after rejection of bail under Section 389 (2) Cr.P.C. by the High Court. This is so, as judicial propriety would clearly prohibit a subordinate court from granting relief to the convicted accused once the High Court has declined it. 39. In light of the discussions held above, we hold that an application for grant of bail would clearly lie before the High Court under Section 389 (2) Cr.P.C. after bail is denied by the subordinate appellate court. There is no express or implied bar nor such an embargo can be culled out from the statutory scheme. The reference is, accordingly, answered by endorsing the view taken by learned Single Judge in its order dated 27.4.2016 that an application for bail would be maintainable before this Court under Section 389 (2) Cr.P.C.