the subject, we issue the following guidelines:
a) The subsequent bail application by the same
accused will be entertained only if there is
change of circumstance for filing such
application.
b)Subsequent bail application filed by the same
accused shall be heard by the learned Judge who
has considered and passed orders on the earlier
bail application/applications in the same
crime.
c) The application filed by the co-accused may be
considered and ordered by any other learned
Judge having roster during the relevant point
of time and such application need not be placed
before the Judge who passed orders earlier on
the application filed by another accused.
d) The subsequent bail application filed by the
same accused in the same crime during Onam and
Christmas holidays may wait for orders till the
end of the said holidays, in case, if the
learned Judge who has passed orders on the
earlier application is not available for orders
during those holidays or if he is not
designated as a Vacation Judge.
e) In case if the subsequent bail application is
filed by the same accused during summer
vacation and if the learned Judge who passed
earlier order is not available for orders or if
he is not a designated Vacation Judge, the memo
filed under section 8 of the High Court Act on
behalf of the accused-applicant be listed
before the learned Judge nominated to hear the
bail applications during the summer vacation.
However, the fact that an earlier bail
application in the same crime is dismissed is
to be brought to the notice of that Vacation
Judge. The factor of listing the matter during
summer vacation or refusing to do so can be
decided by the learned Vacation Judge sitting
in summer vacation.
f) If the learned Judge who passed order on the
earlier bail application filed by the same
accused in the same crime is sitting in the
Division Bench, the subsequent application for
bail may be brought to the notice of the
Hon'ble the Chief Justice by the Registry so as
to enable the Hon'ble the Chief Justice to make
necessary arrangement to have a special sitting
of the said learned Judge.
g) The counsel for the accused who is filing the
subsequent application for bail in the same
crime shall mention in the application seeking
bail about the disposal of earlier bail
application filed by this very accused. A copy
of the order passed on such application earlier
in respect of the same accused shall also be
produced along with the second or successive
bail applications.
h) It is the duty of the Public Prosecutor
concerned to bring to the notice of the court,
as far as possible, about the earlier bail
application filed by the same accused as well
as about any application filed by the co-
accused in the same crime and the result
thereof, either by filing the statement of
objections or at least at the time of arguments
on the bail application.
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
ACTING CHIEF JUSTICE MR. MOHAN M.SHANTANAGOUDAR
MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
MR.JUSTICE K.T.SANKARAN
1ST DAY OF SEPTEMBER 2016
Bail Appl..No. 797 of 2015 ()
FIROS ALI,
Vs
STATEOF KERALA
1. The Apex Court, in the case of Shahzad Hasan Khan v.
Ishtiaq Hasan Khan [AIR 1987 SC 1613(1)], while
taking notice of the fact that successive bail
applications are being filed by the same accused in
the same crime, held that the long standing
convention and judicial discipline requiring the bail
application/applications subsequently filed shall be
placed before the learned Judge who passed orders on
the bail application filed earlier need to be
followed. It was observed further in the same matter
thus:
"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 in as much 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. It 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 court orders."
2.From the aforementioned observations of the Apex
Court, it is amply clear that in order to prevent
abuse of the process of court and to prohibit the
litigant from forum shopping in selecting the court
depending on whether the court is to his liking or
not and in order to discourage the filing of
successive bail applications without any new factor
having cropped up, the successive bail applications
in the same crime by the same accused shall be placed
before the same Judge who has disposed of the earlier
bail application, if such learned Judge is available
for orders. If such a procedure is adopted,
conflicting orders could also be avoided.
3.The ratio laid down in the aforementioned judgment is
reiterated by the Apex Court in the judgment in State
of Maharashtra v. Captain Buddhikota Subha Rao [AIR
1989 SC 2292] equivalent to [(1989) Supp. (2) SCC
605] wherein, it is observed thus:
"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 in as much
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 dispatch. It will
also result in consistency."
4.The aforementioned two judgments are referred with
approval in Jagmohan Bahl v. State (NCT of Delhi)
[2014 (14) SCALE 224] wherein it is observed thus:
"On a perusal of the aforesaid authorities, it is
clear to us that the learned Judge, who has
declined to entertain the prayer for grant of bail,
if available, should hear the second bail application
or the successive bail applications. It is in
consonance with the principle of judicial decorum,
discipline and propriety. Needless to say, unless
such principle is adhered to, there is enormous
possibility of forum-shopping which has no sanction
in law and definitely, has no sanctity. If the same
is allowed to prevail, it is likely to usher in anarchy,
whim and caprice and in the ultimate eventuate
shake the faith in the adjudicating system. This
cannot be allowed to be encouraged."
It was further observed by the Apex Court in Jagmohan
Bahl (supra) that it was the duty of the prosecution
to bring to the notice of the Judge concerned that
such a bail application was rejected earlier by a
different Judge and that he was available for orders.
While concluding so, their Lordships have observed as
under:
"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 decryable in law."
5.The result of aforementioned successive
pronouncements of the Apex Court is that the judicial
discipline requires that if successive bail
applications are filed by the same accused, in the
same crime, the matter must be placed before the same
Judge who disposed of the earlier application, if he
is available for orders, in order to prevent abuse of
the process of court; to prevent an impression being
created that a litigant is avoiding or selecting a
court to secure an order to his liking; to save time
of the court as a Judge familiar with the facts will
be able to dispose of the subsequent application/
applications effectively and as the same would be
conducive to judicial discipline.
There cannot be any dispute that the litigants cannot
be engaged in forum shopping in as much as if
allowed, the same would lead to injustice and
travesty of justice.
6.However, the Registry of this Court is faced with
certain doubts in carrying out the dictum laid down
by the Apex Court in view of certain orders on the
judicial side by learned Judges, which can be
summarised as under:
1. Successive Bail Applications are ordered to
be posted before the same Judge if he is
"available" for orders. But the term "available"
is not defined anywhere. It is to be decided
whether a Honorable Judge sitting in Division
Bench can be considered as "available for
orders".
2. It is also to be considered as to whether
during Summer, Onam and Christmas holidays when
only limited number of courts are holding
sittings, the bail applications can be posted as
per roster in case where the Hon'ble Judge who
passed the earlier order in bail application is
not sitting during the holidays, considering
that the Hon'ble Judge who passed the earlier
order on the bail application is "not available
for orders".
3. Another doubt is as to whether `the same
subject matter' takes in its fold, the bail
application filed earlier by the co-accused
also.
If so, necessary directions are also to be
issued to the litigants and lawyers to indicate
the same in their Bail Application which may not
be practical.
7. This Full Bench is specially constituted to clear
the doubts which have arisen in the mind of the
Registry and in order to effectively implement the
dictum laid down by the Apex Court mentioned supra in
the matter of deciding the bail applications.
8.We have heard the learned counsel on the subject.
During the process of argument, it is brought to the
notice of the Full Bench that if the learned Judge
who passed orders on an earlier bail application is
on long leave for more than one month or so, can it
be said that the very learned Judge who passed the
earlier order should hear the subsequent bail
application and consequently, as to whether such
application shall not be heard till the very learned
Judge is available for orders. According to the
learned counsel, the learned Judge who passed orders
on an earlier application for bail cannot be said to
be available for orders if he is on long leave or if
he is not sitting during summer vacation or Onam and
Christmas holidays or if he is retired or
transferred.
It is further argued that the Registry may not know
about the disposal of any bail application made on
the same subject earlier and in that event, the
Registry may place the subsequent bail
application/applications before another Judge as per
the roster inadvertently.
The doubt is also raised before the court by the
advocates as to the meaning of "same subject" as used
by the Apex Court in the case of Shahzad Hasan Khan
(supra) while lamenting that "if the successive
applications filed on the same subject are permitted
to be disposed of by other learned Judges, there
would be conflicting orders etc." Learned advocates
have raised a doubt as to whether the words
"same subject" refer to the same crime or the same
accused.
Lastly, it is contended at the Bar that in case a
bail application is filed by a co-accused in the same
crime, whether such application need be placed
before the very learned Judge who has considered and
disposed of the bail application filed by another
accused earlier.
9.Nobody can possibly say that the learned Judge who
passed earlier orders on a bail application, if
retired or transferred, shall consider the subsequent
bail application on the same subject even after his
retirement or transfer. Naturally, in such an event,
the subsequent bail applications need be placed for
consideration before the learned Judge who is having
the roster.
10.Generally summer vacation is of four to five weeks
whereas Onam and Christmas holidays are of one week
each. If a subsequent bail application is filed by
the same accused during summer vacation or during
Onam and Christmas holidays and if the learned Judge
who passed the order on an earlier application for
bail at the first instance is not designated as a
vacation Judge, then, it may be difficult to follow
the dictum laid down by the Apex Court as mentioned
supra fully in its letter and spirit. We cannot lose
sight of the fact that in case an application for
bail is filed, the same needs to be heard and decided
as early as possible in as much as the liberty of a
person is of utmost importance and that if an
innocent person is put behind the bars without any
valid reason, the same would affect his fundamental
right to live. However, we cannot also lose sight of
the fact that in case if a subsequent bail
application is filed by the same accused, the Public
Prosecutor would normally pray for some time to get
the investigation records and to file objections in
order to have his say in the matter. Such process may
take one week or at least five to six days. Since the
Onam and Christmas holidays would be around one week
each, the bail application subsequently filed may be
posted after Onam or Christmas holidays before the
same learned Judge who had considered the application
for bail filed earlier by the same accused, if the
Judge concerned is not designated as a Vacation Judge
during Onam or Christmas holidays.
11.However, difficulty may arise if the learned Judge
who passed the earlier orders on the bail application
is not available for orders during the summer
vacation, or if he is not a designated Vacation Judge
during summer vacation. Since the liberty of the
person is of utmost importance, the subsequent
application filed by the accused, though his earlier
application for bail is rejected by a different
Judge, may be considered by the learned Judge who is
designated as Vacation Judge during the relevant
point of time. However, before posting of the
application before court, it is necessary on the part
of the Registry to bring to the notice of the
Vacation Judge about the factum of disposal of an
earlier bail application on the same subject by
another learned Judge. When bail applications are
filed before the vacation court, the memos filed
under Section 8 of the High Court Act could be listed
before the Hon'ble Judge nominated to hear the bail
applications. The fact that earlier bail application
of the same applicant was rejected shall be brought
to the notice of that Hon'ble Judge. Thereafter, it
is open for the Vacation Judge concerned either to
get the matter listed before him or refuse to do so.
That is, the discretion rests on the Vacation Judge
to take a decision, either to hear or to direct the
Registry to place the application after vacation
before the very learned Judge who has rejected the
application for bail at an earlier point of time.
12.There cannot be any dispute that the subsequent bail
application is not maintainable if there is no change
of circumstance. So also, it is necessary that the
applicant shall clearly mention in his subsequent
bail application and to bring to the notice of the
court about the earlier orders passed on his earlier
applications so as to enable the Registry to note the
gist of the orders as well as to note the same on the
docket of the judges papers while submitting before
the Bench for hearing. This process would avoid
forum shopping.
13.In case, if the learned Judge who passed orders on
an earlier bail application is sitting in the
Division Bench, the Registry may bring such factor to
the notice of the Hon'ble the Chief Justice so as to
enable the Hon'ble the chief Justice to pass
appropriate orders regarding posting of the matter
before the very learned Judge, in order to facilitate
such learned Judge to hear and pass orders on the
subsequent bail application.
14.Regarding the doubt as to whether the 'same subject
matter' takes in its fold the bail application filed
earlier by a co-accused also, we are of the
considered opinion that the subject matter differs
not only from case to case but also from accused to
accused. The subject matter pertaining to accused
No.1 may totally be different from the subject matter
of accused Nos.2, 3 etc. in the same crime. Let us
take the example of a crime committed by 4 accused.
In the said crime, accused No.1 may have committed
the crime by assaulting the victim with chopper or
sickle, the second accused may have assaulted the
victim without weapon, the third accused may have
instigated the other accused to commit the crime and
the fourth accused may have the allegation of
scolding the victim when the incident was taking
place. In such a case, the subject matter of each of
the 4 accused is different. The rejection of the
application for bail filed by the first accused may
or may not be the ground for rejection of the bail
application of the other accused. The order passed
on the application for bail in the case of one
accused may or may not be relevant while considering
the application for bail filed by other accused. In
this view of the matter, it is not necessary to place
application/applications by the co-accused before the
very learned Judge for orders who had passed order on
the bail application filed by another accused. The
application/applications filed by co-accused may be
heard by a different Judge having roster.
15. If the application for bail is filed by the co-
accused, as aforementioned, it may come before
another learned Judge for consideration and orders.
In that event, the Registry as well as the advocate
appearing on behalf of the co-accused may or may not
be having knowledge about the filing of the bail
application by another accused. In some cases, the
subject matter relating to one accused may almost be
similar to the subject matter of the co-accused. In
this view of the matter, it would be beneficial for
the Judge who would be hearing the bail application
filed by the co-accused to know about the order
earlier passed in respect of another accused almost
on the same or similar subject matter. Since the
Public Prosecutor in both the bail applications would
be common, as far as possible, it is necessary on his
part to bring to the notice of the learned Judge who
would be hearing the bail application of the co-
accused about the passing of earlier orders on the
bail application filed by another accused.
16.Having regard to the aforementioned discussion on
the subject, we issue the following guidelines:
a) The subsequent bail application by the same
accused will be entertained only if there is
change of circumstance for filing such
application.
b)Subsequent bail application filed by the same
accused shall be heard by the learned Judge who
has considered and passed orders on the earlier
bail application/applications in the same
crime.
c) The application filed by the co-accused may be
considered and ordered by any other learned
Judge having roster during the relevant point
of time and such application need not be placed
before the Judge who passed orders earlier on
the application filed by another accused.
d) The subsequent bail application filed by the
same accused in the same crime during Onam and
Christmas holidays may wait for orders till the
end of the said holidays, in case, if the
learned Judge who has passed orders on the
earlier application is not available for orders
during those holidays or if he is not
designated as a Vacation Judge.
e) In case if the subsequent bail application is
filed by the same accused during summer
vacation and if the learned Judge who passed
earlier order is not available for orders or if
he is not a designated Vacation Judge, the memo
filed under section 8 of the High Court Act on
behalf of the accused-applicant be listed
before the learned Judge nominated to hear the
bail applications during the summer vacation.
However, the fact that an earlier bail
application in the same crime is dismissed is
to be brought to the notice of that Vacation
Judge. The factor of listing the matter during
summer vacation or refusing to do so can be
decided by the learned Vacation Judge sitting
in summer vacation.
f) If the learned Judge who passed order on the
earlier bail application filed by the same
accused in the same crime is sitting in the
Division Bench, the subsequent application for
bail may be brought to the notice of the
Hon'ble the Chief Justice by the Registry so as
to enable the Hon'ble the Chief Justice to make
necessary arrangement to have a special sitting
of the said learned Judge.
g) The counsel for the accused who is filing the
subsequent application for bail in the same
crime shall mention in the application seeking
bail about the disposal of earlier bail
application filed by this very accused. A copy
of the order passed on such application earlier
in respect of the same accused shall also be
produced along with the second or successive
bail applications.
h) It is the duty of the Public Prosecutor
concerned to bring to the notice of the court,
as far as possible, about the earlier bail
application filed by the same accused as well
as about any application filed by the co-
accused in the same crime and the result
thereof, either by filing the statement of
objections or at least at the time of arguments
on the bail application.
Ordered accordingly.
Sd/-
MOHAN M.SHANTANAGOUDAR
Ag. Chief Justice
Sd/-
THOTTATHIL B.RADHAKRISHNAN
Judge
Sd/-
K.T.SANKARAN
Judge
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