Madhya Pradesh High Court
State Of M.P. vs Chandrahas Dewangan on 12 March, 1991
Equivalent citations: 1992CRILJ711
JUDGMENT P.C. Pathak, J.
1. This is a reference made by III Additional Sessions Judge (III A.S.J. in short), Raipur, Under Section 395(2) of the Code of Criminal Procedure, 1974 (hereinafter called the 'Code').
2. Police Station Bhatapara, in district Raipur arreested accused Chandrahas Dewangan for the offences Under Sections 307, 427, 435, 325 and 323, IPC committed on 27-3-1990, in village Maldi, district Raipur. He filed bail application No. 1025/90, Under Section 439 of the Code which was rejected on 23-6-1990 on merits by the Sessions Judge (Annexure-A). Meanwhile on commitment, the case against the accused was registered as S.T. No. 191 /90 and by order dated 21-6-90, it was allotted and transferred to the Court of III A.S.J. to try it in link-court at Baloda Bazar.
3. On 24-7-1990, the accused again filed another bail-application No. 1211/90 under Section 439 before the Sessions Judge, who by his order dated 1-8-90, transferred it for disposal to the Court of III A.S.J. The III A.S.J. by order dated 22-8-1990 sent the bail application along with records of Sessions Trial to the Sessions Judge since earlier bail application was also rejected by him and as such the subsequent application could be disposed of by him alone. The Sessions Judge, however, by his order dated 17-9-1990 again transferred the bail application to the Court of III A.S.J. with the remarks that S.T. No. 191/90 against the applicant/accused is pending for trial in his court (Annexure-C) and as such the application should be disposed of by him alone.
4. On 21-9-1990, the Additional Public Prosecutor raised an objection that the subsequent bail application could be heard and disposed of by the Sessions Judge alone who had rejected the earlier bail application. The pendency of the trial confers no jurisdiction on III A.S.J. to dispose of the subsequent bail application. The learned III A.S.J. has, therefore, made the present reference with the following questions:--
(i) Whether in the light of decisions in Shahzad Hasan Khan v. Ishtiaq Hassan Khan AIR 1987 SC 1613 : (1987 Cri LJ 1872), Daini alias Raju v. State of M.P. 1989 JLJ 323 : (1989 Cri LJ (NOC) 149 and Munna Singh Tomar v. State of M.P. 1989 JLJ 350 : (1990 Cri LJ 49), Shri R. K. Mishra, Sessions Judge, Raipur, who had rejected the first bail application, ceases to exercise jurisdiction to dispose of subsequent bail application merely because the sessions trial against the accused is allocated to the Court of III A.S.J.?
(ii) Whether the subsequent bail application during pendency of trial in other court has to be disposed of by the same judge if available?
5. The filing of repeated bail applications found favour in the decision of Supreme Court in Babu Singh v. The State of Uttar Pradesh : 1978 Cri LJ 651 : AIR 1978 SC 527, wherein it was held that an order refusing an application for bail does not necessarily preclude another, on a later occasion, giving more materials, further developments and different considerations. The Court is not barred from second consideration at a later stage. It was held that an interim direction is not conclusive adjudication, and updated reconsideration is not over turning an earlier negation.
6. In one of the cases, Shri Batt J. while rejecting the bail application of the accused observed, "There is no justification for grant of bail to the applicants-accused on any terms, whatsoever, till the disposal of the case against them, since there is already more than sufficient incriminating evidence, for their inculpation, in the investigation done so far." On a reference the Division Bench in Ram Sahodar v. State of M.P. 1985 JLJ 750 : 1986 Cri LJ 279, held that while dismissing a bail application, it is not permissible to make an order to the effect that the applicant cannot be released on bail on any terms whatsoever till the disposal of the case against him.
7. Another land mark decision was rendered in Shahzad Hasan Khan v. Ishtiaq Hasan Khan AIR 1987 SC 1613 : 1987 Cri LJ 1872. It was held that the subsequent bail application should be placed before the Judge who had disposed of the earlier bail application. In this case Ishtiaq Hasan and 3 others were facing trial for murder of one Zaheer Hasan. The accused moved the High Court for grant of bail. Justice Kamleshwar Nath of Lucknow Bench rejected the bail application. The accused filed bail applications successively but they were all rejected by Justice Kamleshwarnath. The accused again made another application for bail this time the application was placed before Justice Bajpai who directed that the application be placed before Justice Kamleshwarnath. Two days later, another application was made by the accused before Justice Bajpai for recalling his order directing his application to be placed before Justice Kamleshwarnath. This application was allowed and Justice Bajpai recalled his previous order and granted bail to the accused. The order granting bail was challenged before the Supreme Court. The Supreme Court observed that the bail application should have been placed before Justice Kamleshwar Nath who had passed the earlier orders and who was available also. The convention that subsequent bail applications should be placed before the same Judge who may have passed earlier orders has its roots in principle. It prevents abuse of process of court inasmuch as an impression is not created that a litigant is shunning or selecting a court depending on whether the court is to his liking or not, and is encouraged to file successive applications without any new factor having cropped up. If successive applications on the same subject are permitted to be disposed of by a different Judge there would be conflicting orders and a litigant would be pestering every Judge till he gets an order to his liking resulting in the credibility of the court and the confidence of the other side being put in issue and there would be wastage of courts' time. Judicial discipline requires that such matter must be place before the same Judge, if he is available for orders.
8. The observations of the Supreme Court that the subsequent bail application must be placed before the same Judge, if available, are based on judicial discipline and long standing conventions prevailing in High Courts to achieve the object viz. to prevent a litigant from shunning or selecting a court and to discourage filing of successive applications without any new factor till he gets an order to his liking. If such a practice is permitted, there would be conflicting orders, the credibility of the court would be affected and would result in wastage of courts' time.
9. The referring A.S.J. has also invited our attention to Daini alias Raju v. State of M.P. 1989 JLJ 323 : (1989 Cri LJ NOC 149) and another decision reported in the same volume (Munna Singh Tomar v. State of M.P., 1990 Cri LJ 49 : 1989 JLJ 350). In Munna Singh's case, decided by a Division Bench of this Court sitting at Gwalior, lays down that even if the earlier bail application was dismissed as withdrawn or not pressed by any single Judge of the High Court, the subsequent bail application of the same applicant should be placed for hearing before the same Judge who had rejected the earlier bail application, if he is available.
10. The subsequent bail applications are to be placed before the same Judge subject to his availability. In Chambers 20th Century Dictionary the Word 'Available' means 'that one may avail oneself; 'accessible'; 'within reach'; 'obtainable'. In Black's Law Dictionary the word 'Available' means 'suitable'; 'usable'; 'having sufficient force of efficacy'; 'effectual'. In Stroud's Judicial Dictionary different meaning is assigned to the word depending on the context in which it is used. The words "Accommodation available" for a 'traveller'; means "capable of being used".
11. To me it appears that availability of a Judge in the present context is that he should not only be physically available but should also have inclination to dispose it of. If such a Judge, on receipt of subsequent bail application, does not opt to dispose it; instead directs that the application may be heard by any other Judge, it is implicit that he is not 'available' for disposal of the said application and in such a situation, there cannot be any legitimate objection if the application is disposed of by any other Judge. Such a course will also not frustrate the statutory object behind the practice of placing all applications before the same Judge as directed by the Supreme Court. When the Judge concerned himself explicitly announces his 'non-availability', it is not proper to say that he is 'available' for disposal of the subsequent application. The disposal of subsequent application by any other Judge will not amount to breach of Supreme Court's directive.
12. Recently one of us (Pathak J) was a member of Division Bench headed by Shri Faizan Uddin J., A large number of subsequent bail applications, were placed before the bench for consideration on special bench days. We found it time consuming and dislocation of normal functioning of the other Benches of which we were members. We, therefore, directed that all such subsequent bail applications be placed before the normal Division Bench (criminal) for disposal. In other words, we expressed that the Bench is not available for disposal of the subsequent bail applications.
13. The principle enunciated by the Supreme Court in Shahzad's case (supra) is being followed by the Sessions Courts as well. When the first bail application of the accused was rejected by the Sessions Judge, possibly the case had not been committed to the Sessions for trial. The subsequent bail application was filed after the case was committed to the court of Session and was assigned to the Court of III Additional Judge for disposal according to law. Once the trial of a case is assigned to a particular court, that court has jurisdiction to dispose of all interlocatory applications including the bail applications. Since he has seisin over the record of the case, the disposal of the application by him will consume lesser time than by any other Judge.
14. In the present case the Sessions Judge had already transferred the records of the sessions trial to the Court of III Additional Sessions Judge. Therefore, the Sessions Judge rightly transferred the subsequent bail application to III Additional Sessions Judge for disposal. The transfer of the application implies that the Sessions Judge declared himself as 'not available'. The Sessions Judge also enjoys power of assigning any urgent application for disposal by an Additional Sessions Judge in the event of his absence or inability to act, Under Section 10(3) of the Code. Under Section 194 of the Code, the Sessions Judge can make over any case for trial to the Additional Sessions Judge and on such transfer the case or the application as the case may be has to be disposed of by such Additional Sessions Judge.
15. In the present case, the subsequent bail application was filed as an interlocutory application in the Sessions Trial before the III Additional Sessions Judge. Therefore, the III A.S.J. having seisin over the case should also dispose of the application. We do not think this would amount to a breach of the law laid down by the Supreme Court.
16. Our view finds support from Sections 10(3), 194, 400 and 409 of the Code, which confer powers on the Sessions Judge to make over the cases, appeals, applications for disposal to the Court of Additional Sessions Judge. Once the case/appeal/ application has been so transferred, the Sessions Judge cannot withdraw them except in accordance with Sections 408 and 409. They do not enable the Sessions Judge to withdraw a bail application filed as an interlocutory application in a Sessions Trial. He can do this only when he recalls the case itself. There is no provision in the Code empowering an Additional Sessions Judge to transfer any case to the Sessions Judge.
17. We, therefore, answer the reference as under:--
(i) After the case has been made over for trial to the Court of Additional Sessions Judge, the Sessions Judge ceases to exercise jurisdiction over interlocutory applications including bail application filed in the Sessions Trial in spite of rejection of previous applications by him.
(ii)The subsequent bail applications, if filed after the case has been made over for trial to an Additional Sessions Judge, shall be disposed of by the Trial Judge and not by the Judge who had rejected the bail applications earlier.