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.”
5. 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.
6. 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.”
7. 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.
8. 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.
In the High Court of Kerala at Ernakulam
(Before Mohan M. Shantanagoudar, A.C.J. and Thottathil B. Radhakrishnan and K.T. Sankaran, JJ.)
Firos Ali,
v.
State of Kerala
B.A. No. 797 of 2015
Decided on September 1, 2016
Citation:2016 SCC OnLine Ker 18756
