Patna High Court - Orders
Saurav Kumar @ Saurabh Kumar vs The State Of Bihar on 24 April, 2026
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Mohit Kumar Shah
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.657 of 2024
Arising Out of PS. Case No.-356 Year-2018 Thana- GAYA MUFASIL District- Gaya
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Saurav Kumar @ Saurabh Kumar, son of Sudhir Kumar, Resident of Village-
Surheri, P.S. Muffasil, District- Gaya.
... ... Appellant
Versus
1. The State of Bihar
2. 'X'
... ... Respondents
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Appearance :
For the Appellant : Mr. Ajay Kumar Thakur, Advocate
Md. Imteyaz Ahmad, Advocate
Mr. Ritwij Raman, Advocate
Mr. Mudit Meet, Advocate
Mr. Shivam, Advocate
Mr. Pravin Kumar, Advocate
Mr. Purushottam Kumar, Advocate
Mr. Amish Kumar, Advocate
Mr. Satish Kumar Mehta, Advocate
For the State : Mr. Binod Bihari Singh, Advocate
For the Resp No. 2 : Mr. Rounak Sinha, Advocate
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
and
HONOURABLE MR. JUSTICE SANJAY KUMAR SINGH
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
(For self and on behalf of Hon'ble Mr. Justice Mohit Kumar
Shah and Hon'ble Mr. Justice Sanjay Kumar Singh)
11 24-04-2026Heard Mr. Ajay Kumar Thakur, learned Advocate, Mr. Amish Kumar, learned Advocate and Mr. Rounak learned Advocate as also Mr. Binod Bihari Singh, learned Additional Public Prosecutor for the State.
2. This Court is considering the reference made by the Hon'ble Division Bench of this Court in Cr. Appeal (DB) No. Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026 2/23 657 of 2024 vide order dated 03.02.2026. The necessity to make the reference may be found in the order of the Hon'ble Division Bench. Briefly stating, the Hon'ble Division Bench was hearing an application seeking suspension of sentence and release on bail of the appellant. In course of hearing, it was noticed that prior to making the application, the appellant had moved for the identical reliefs. The Hon'ble Predecessor Division Bench heard the matter on the point of suspension of sentence on 18.01.2025. The order dated 18.01.2025 is being reproduced hereunder for a ready reference:-
"Heard Mr. Ajay Kumar Thakur, learned counsel for the appellant and Mr. Binod Bihari Singh, learned APP for the State appearing in Criminal Appeal (DB) No.646 of 2024, Mr. Ajay Kumar Thakur, learned counsel for the appellant and Mr. Binod Bihari Singh, learned APP for the State appearing in Criminal Appeal (DB) No.657 of 2024, Mr. Aryan Singh, learned counsel for the appellant and Mr. Sujit Kumar Singh, learned APP for the State appearing in Criminal Appeal (DB) No.678 of 2024, Mr. Aryan Singh, learned counsel for the appellant and Mr. Binod Bihari Singh, learned APP for the State appearing in Criminal Appeal (DB) No.683 of 2024, Mr. Birendra Kumar, learned counsel for the appellant and Mr. Binod Bihari Singh, learned APP for the State appearing in Criminal Appeal (DB) No.687 of 2024, Mr. Gautam Kumar Kejriwal, learned counsel for the appellant and Mr. Binod Bihari Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026 3/23 Singh, learned APP for the State appearing in Criminal Appeal (DB) No.727 of 2024 and Mr. Shailesh Kumar learned counsel for the appellant and Mr. Abhimanyu Sharma, learned APP for the State appearing in Criminal Appeal (DB) No.751 of 2024 and Mr. Rounak Sinha, learned counsel for the informant appearing in all the appeals.
2. Learned counsels appearing for the respective appellants do not want to press the prayer for grant of bail for respective appellants for the present.
3. However, it has been requested that as the Trial Court has convicted the appellants for commission of the offence punishable under section 376 (D) of the Indian Penal Code, in view of the provisions contained under Section 374(4) of Code of Criminal Procedure, the appeals be heard within stipulated time.
4. In view of the aforesaid submission, prayer for bail and for suspension of sentence is not entertained for the present. However, in view of the provision contained in Section 374(4) of the Code of Criminal Procedure, office is directed to prepare the paper-book and thereafter list the matter under the caption "For Hearing" in the week commencing from 12th of May, 2025."
3. Since the Hon'ble Division Bench noticed that earlier identical prayer of the appellant was considered by a Division Bench of this Court to which one of the Hon'ble Judges (Hon'ble Mr. Justice Alok Kumar Pandey) is still available in this Court, therefore, the Division Bench took a Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026 4/23 view that it becomes a tied up matter and the interlocutory application is required to be listed before a Division Bench to which the said Hon'ble Judge should have been a party. At this stage, the Hon'ble Division Bench was informed that a learned Co-ordinate Bench of this Court has vide order dated 12.12.2025 in Cr. Appeal (DB) No. 499 of 2024 passed the following order:-
"Perused the record.
2. We are unable to comprehend why this matter has been treated as tied up, as no order deciding any bail application or prayer for bail has been passed by one of us sitting in earlier Division Bench.
3. Learned counsel appearing on behalf of the petitioner submits that due to order dated 25.09.2024, the matter is being treated as tied up.
4. On 25.09.2024, the following order was passed:
"Heard Mr. Rajani Ranjan Pd. Singh, learned Advocate for the appellant, Mr. Upendra Yadav, learned Advocate for the Informant and Mr. Parmeshwar Mehta, learned A.P.P. for the Respondent-State.
2. Learned Advocate for the appellant does not press the prayer for bail and for suspension of sentence for the present.
3. Hence, the said prayer is not entertained for the present.
4. However, liberty is reserved to the appellant to file separate Interlocutory Application under Section 389(1) of the Code of Criminal Procedure, after a period of one year."
5. From the aforesaid order dated 25.09.2024, it Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026 5/23 is apparent that the prayer for bail of the appellant was not entertained on submission of the learned counsel for the appellant as the same was not being pressed. However, no order was passed either disposing of any bail application or prayer for bail or dismissing it as not pressed.
6. In the light of aforesaid facts and circumstances, the office is directed to list this case before appropriate Bench after obtaining necessary permission from Hon'ble the Acting Chief Justice."
4. There being a divergent view on the matter as to where the subsequent application should be listed and heard, the Hon'ble Division Bench thought it just and proper to refer the matter to a larger Bench. The Division Bench has referred and relied upon the judgment of the Hon'ble Supreme Court in the case of Shahzad Hasan Khan vs. Ishtiaq Hasan Khan reported in (1987) 2 SCC 684 (paragraph '5') and the judgment of the Hon'ble Full Bench of the Madhya Pradesh High Court in the case of Santosh Bhawani Singh vs. State of M.P. (F.B.) reported in 2000 Cri. L.J. 1834 (paragraph '3').
5. In it's order of reference, the Division Bench has framed the following issues for reference:-
"17. The discussions hereinabove raises an issue as to (i) whether a subsequent application/prayer Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026 6/23 for suspension of sentence and grant of bail after withdrawal of identical application/prayer before a Bench be placed before the same Division Bench if the Hon'ble Judges who constituted the earlier Bench are still available?
(ii) If one of the Hon'ble Judges has either retired or transferred from the Court, whether such matters be listed before a Division Bench comprising one of the Hon'ble Judges who is still available?"
Submissions of Mr. Ajay Kumar Thakur, Mr. Amish Kumar, Mr. Rounak Kumar, learned Advocates and Mr. Binod Bihari Singh, learned Additional Public Prosecutor
6. Mr. Ajay Kumar Thakur, learned counsel leading the argument has placed before this Court Rule '28' under Chapter VII of the Patna High Court Rules (as amended up-to- date). Chapter VII deals with the 'Procedure before Admission'. By relying upon Rule '28', learned counsel submits that on a bare reading of this Rule, it would appear that once an order has been passed by the Hon'ble Judge of this Court on any application, the subsequent application to the same effect or with the same object would be required to be listed before the same Hon'ble Judge. The only exception would be an order of reference to another Judge or Judges and except that it is by way of an appeal.
Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026 7/23
7. Learned counsel has further taken this Court through Rule '4A' under Chapter XII of the Patna High Court Rules wherein besides mandating that every petition for appeal, application shall contain the prescribed particulars, it is specifically stated that application for bail shall further state whether on the same facts or otherwise a previous application for bail had been filed in the Court on behalf of any of the applicants for bail, and if so, the number of the case, the date of disposal and result thereof. It is his submission that a conjoint reading of Rule '28' under Chapter VII and Rule '4A' under Chapter XII of the Patna High Court Rules would go a long way to show that in a criminal appeal where the appellant being a convict has prayed for suspension of his sentence and release on bail but the said prayer was either withdrawn or rejected for any reason, a subsequent application for the identical relief shall be listed before the same Hon'ble Bench.
8. Learned counsel submits that earlier the Hon'ble Full Bench of Madhya Pradesh High Court has considered this aspect of the matter in the case of Santosh Bhawani Singh (Supra). The Hon'ble Full Bench of the Madhya Pradesh High Court had privilege to rely upon the judgment of the Hon'ble Supreme Court in the case of Shahzad Hasan Khan (supra) Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026 8/23 wherein this issue had cropped up and the Hon'ble Supreme Court had considered the same. The Hon'ble Full Bench held that even though posting of the subsequent bail applications before the same Bench had never been considered as an imperative of law, this requirement was recognized in view of the long standing convention and judicial discipline. In the case of Shahzad Hasan Khan (supra), the Hon'ble Supreme Court observed that the convention that subsequent bail application should be placed before the same Judge who may have passed earlier orders has it's roots in principle as it prevents abuse of process of the court and obviates possibility of an impression that a litigant is shunning or selecting a court depending on whether the court is to his liking or not.
9. Mr. Thakur, learned counsel has placed before this Court Rule '16' of the Madhya Pradesh High Court Rules, 2008 to submit that in consonance with what were held by the Hon'ble Full Bench in Santosh Bhawani Singh (supra), the Madhya Pradesh High Court substituted Rule '16' of the High Court Rules vide Notification published in M.P. Gazette (Extra) dated 30.07.2010, Page 801, w.e.f. 10.08.2010. Tied-up matter has been defined under clause (23) of Rule '4' under Chapter I of the Madhya Pradesh High Court Rules, 2008 (as amended Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026 9/23 up-to-date). Rule '16' deals with the tied-up matters. In terms of sub-clause (3) of clause (23) of Rule 4, a repeat application for bail or suspension of sentence would be covered within the meaning of the words "Tied-up Matters". It is pointed out that even under Rule '15' of the Madhya Pradesh High Court Rules all subsequent applications under Sections 389(1), 438 and 439 of the Code of Criminal Procedure, 1973 were required to be listed before the same Judge/ Bench who/ which had decided the first application even if the earlier application was dismissed for want of prosecution or dismissed as not pressed or withdrawn.
10. Mr. Thakur, learned Advocate has further placed before this Court Rule '14' under Chapter V of the Allahabad High Court Rules which provides that a case partly heard by a Bench shall ordinarily be laid before the same Bench for disposal. Only when there is a case in which a Bench has merely directed notice to be issued to the opposite party or passed an ex parte order, the same shall not be deemed to be partly heard by such Bench. It is submitted that the Hon'ble Jharkhand High Court has also made Rules. Rule 68(3) of the Jharkhand High Court Rules, 2001 is at pari materia with Rule '28' under Chapter VII of the Patna High Court Rules.
11. Mr. Amish Kumar, learned Advocate has endorsed Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026 10/23 the submissions of Mr. Ajay Kumar Thakur, learned Advocate. In addition, he has placed before this Court a Division Bench judgment of the Hon'ble Kerala High Court in the case of Muhamed Salim vs. State of Kerala reported in 2024 SCC OnLine Ker 7473. It is submitted that very recently, the Hon'ble Kerala High Court has taken a view that if the earlier application of the same nature was dismissed as withdrawn/ not pressed, the Registry shall first place it before the Judge who disposed of the earlier application who shall have the discretion to decide whether the earlier application was considered on merits before it was dismissed as withdrawn/ not pressed. It is submitted that the Hon'ble Division Bench of the Kerala High Court has in the concluding paragraph '25' recorded that if the Judge who passed the orders of withdrawal/ not pressed, is of the view that there was no consideration on merits of the earlier application, the said Judge will be at liberty to direct the Registry to place it before the Judge as per prevailing roster.
12. Mr. Amish Kumar, learned Advocate has submitted that this Court has well-settled tradition of treating such matters as tied-up matters where on an earlier occasion one of the Hon'ble Judges or the Hon'ble Benches has passed an order either dismissing the application on merit or allowing the Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026 11/23 application to be withdrawn or whether the application stands dismissed in want of prosecution. Learned counsel has referred the judgment in the case of Rupam Pathak vs. The State of Bihar through C.B.I. (Cr. Appeal (DB) No. 393 of 2012) wherein the Hon'ble Division Bench of this Court had been pleased to reject the prayer for bail giving some reasons whereafter Rupam Pathak made a fresh prayer for bail before the High Court, a Division Bench of the High Court had granted the bail. The order granting bail was taken to the Hon'ble Supreme Court in Criminal Appeal No. 1836 of 2013 arising out of SLP (Crl.) No. 5520 of 2013 (Sudip Kumar vs. The State of Bihar, through CBI Bihar, Patna & Anr.). The Hon'ble Supreme Court set aside the order granting bail and observed that the prayer for bail made by the respondent Rupam Pathak should have been considered by the same Division Bench of the High Court which had earlier declined bail to the respondent by the order dated 14.05.2012. It is, thus, the submission of learned counsel that in view of the existing provision under the Patna High Court Rules coupled with the judicial pronouncements on the subject, the reference is required to be answered in an affirmative view.
13. Mr. Rounak Sinha, learned counsel representing Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026 12/23 the informant in the appeal has, besides endorsing the submissions of Mr. Ajay Kumar Thakur, placed before this Court a Full Bench Judgment of the Jharkhand High Court in Lurdhu Marandi and Ors. vs. The State of Jharkhand (Cr. Appeal (DB) No. 39 of 2008 and other analogous matters) reported in 2018 SCC OnLine Jhar 276. The Full Bench was hearing a reference as under:-
"3. The Division Bench, making a reference, has not precisely put the controversy in the form of a question to be resolved by the Full Bench. However, the following two questions have arisen calling for the answer from this Bench :
(a) When a first application for bail preferred in a pending appeal under Section 389(1) of the Code has been considered by a Bench and faced rejection, should the successive and subsequent applications, except in exceptional circumstances, be also placed before the same Bench or be listed before the Bench that has been given the roster by the Chief Justice to deal with such matter?
(b) If the first application for bail has been preferred under Section 389(1) if one of the Code and has been rejected by a Bench and of the members is available, whether the successive and subsequent application should be listed before a Bench of which he is a member or should it go before a Regular Bench as per roster assigned by the Chief Justice?"
14. It is submitted that while answering those issues, Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026 13/23 the Hon'ble Full Bench has taken a view that subsequent application/ second application for the same relief is to be heard by the same Division Bench who had rejected the earlier bail application.
15. Mr. Binod Bihari Singh, learned Additional Public Prosecutor for the State has submitted that as a matter of a judicial discipline, once a prayer for suspension of sentence and release on bail of the appellant is either dismissed as withdrawn or dismissed on merit or stood rejected because of non- compliance with any peremptory order, the subsequent prayer for the identical relief need be considered by the same Bench where the matter was earlier listed, unless the Bench is not available as a whole or one of the Hon'ble Judges of the Bench earlier constituted is not available in the Court.
Consideration
16. Having heard learned counsel, we have perused the Rules of the Patna High Court, Madhya Pradesh High Court, Allahabad High Court and the Jharkhand High Court besides the judicial pronouncements on the subject.
17. Rule '28' under Chapter VII and Rule '4A' under Chapter XII of the Patna High Court Rules are as under:-
"28. No application to the same effect or with the same object as a previous application upon Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026 14/23 which a Judge has passed any order, other than an order of reference to another Judge or Judges, shall, except by way of appeal, be presented to any other Judge or Judges on behalf of any person on whose behalf such previous application was presented.
4A. Every petition for appeal, application shall contain full particulars of the case of the Court below including case number, Police Case Number, if any, name of the Session Judge, if any, and the name of the Trying Magistrate or the name of the Committing Magistrate as the case may be. Application for bail shall further state whether on the same facts or otherwise, a previous application for bail had been filed in the Court on behalf of any of the applicants for bail, an if so, the number of the case, the date of disposal and result thereof."
18. Since learned counsel have referred the Rules of some other Hon'ble High Court, we take note of the same. The Madhya Pradesh High Court substituted Rule '16' to lay down the procedure to deal with Tied-up Matters. Rule '15' of the Madhya Pradesh High Court Rules clearly laid down that all subsequent applications under Sections 389(1), 438 and 439 of the Code of Criminal Procedure, 1973 are to be listed before the Same Judge/ Bench even if the earlier application was dismissed for want of prosecution or dismissed as not pressed. Rule '15' Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026 15/23 and Rule '16' of the High Court of Madhya Pradesh Rules, 2008 are quoted hereunder:-
"15. Subsequent applications for Bail - All subsequent applications under sections 389(1), 438 and 439 of the Code of Criminal Procedure, 1973, shall be listed before the same Judge/ bench who/ which had decided the first application, even if earlier application was dismissed for want of prosecution, or dismissed as not pressed or withdrawn.1
[16. (1) Tied up Matters- Whenever a Judge -
(a) is elevated to Supreme Court,
(b) is transferred to other High Court,
(c) demits office, or
(d) is transferred to other Bench or Principal Seat of the High Court,
(e) is not available for any other reason and in the opinion of the Chief Justice, the application, looking to the urgency in the matter, it cannot wait for such Judge to resume work;
all matters tied up to him in a -
(i) single bench (except a review petition, which shall be listed before regular division bench), shall be listed before the regular bench.
(ii) division bench or full bench, shall be listed before a bench of which the available Judge(s) shall necessarily be a member(s). (2) Where none of the Judges comprising the bench to which any matter is tied up, is available in terms of sub-rule (1), such matter shall be listed before the regular bench.]"
1. Substituted by Notification published in M.P. Gaz. (Extra) dt. 30.07.2010, Page 801, w.e.f. 10.08.2010 Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026 16/23
19. We have taken note of the Rule '14' under Chapter V of the Allahabad High Court Rules and Rule 68(3) of the Jharkhand High Court Rules hereinabove, therefore, those are not being extracted hereunder.
20. On a bare reading of Rule '28' under Chapter VII of the Patna High Court Rules, we have no iota of doubt that this Rule itself mandates in positive words and has been posed in such a way that it leaves no room to take any other view save and except to say that the subsequent application for suspension of sentence and release on bail of the appellant would be required to be placed before the same Hon'ble Judge/ Bench. Rule '28' starts with a negative covenant and it is followed by the word "shall", therefore, the mandate is very clear, the Rule is required to be adhered to without any exception.
21. Apart from the Rules of the Patna High Court, there are judicial pronouncements on the subject which have settled the judicial opinion in the matter of listing of the subsequent application for bail. We reproduce the discussions available in paragraphs '10', '11', '12' and '13' of the order of the Hon'ble Division Bench hereunder for a ready reference:-
"10. In the case of Shahzad Hasan Khan v. Ishtiaq Hasan Khan and Another, reported in (1987) 2 SCC 684, the Hon'ble Supreme Court Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026 17/23 was considering a matter in which successive bail applications were filed by an accused-
respondent No.1. His two initial attempts went futile before the trial court for the grant of bail. Earlier, his application for bail was rejected by a Hon'ble Judge of the High Court, but when the subsequent application was filed, the same was posted before another learned Judge, who, having regard to the judicial discipline and prevailing practice in the High Court, directed that the bail application be listed before the earlier Hon'ble Judge who had passed the order rejecting the earlier applications for bail. While the application was pending before the High Court, the earlier Hon'ble Judge was sitting in a Division Bench and the respondents' counsel appeared before him seeking his permission for listing the bail application before him. The learned Judge passed an order releasing the bail application, but in spite of that the bail application was not listed before another Hon'ble Judge in stead it came before the same Hon'ble Judge who had earlier rejected the prayer. On that date, learned counsel for respondent No.1, for some unknown reason, did not press the bail application and at his request, the application was dismissed as withdrawn. In the aforementioned background, when the respondent No.1 made another application, the same was listed before another Hon'ble Judge, but it was ordered to be listed before the earlier Hon'ble Judge, whereafter the said order was Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026 18/23 recalled and once again the matter was taken up by another Hon'ble Judge, who granted bail to the respondent No.1. The Hon'ble Supreme Court having considered the entire circumstances recorded the convention that subsequent bail application should be placed before the same Hon'ble Judge, who had passed the earlier order. The observations of the Hon'ble Supreme Court as recorded in paragraph 5 of the judgment in case of Shahzad Hasan Khan (supra) are as under:
"5. Normally this Court does not interfere with bail matters and the orders of the High Court are generally accepted to be final relating to grant or rejection of bail. In this case, however, there are some disturbing features which have persuaded us to interfere with the order of the High Court. The matrix of facts detailed above would show that three successive bail applications made on behalf of Respondent 1 had been rejected and disposed of finally by Justice Kamleshwar Nath. In that view it would have been appropriate and desirable and also in keeping with the prevailing practice in the High Court that the bail application which was filed in June 1986 should have been placed before Justice Kamleshwar Nath for disposal. In fact on June 3, 1986, Justice D.S. Bajpai being conscious of this practice and judicial discipline himself passed order directing the bail application to be placed before Justice Kamleshwar Nath but subsequently on June 7, 1986 he recalled his order. We are of the opinion that Justice D.S. Bajpai should not have recalled his order dated June 3, 1986 keeping in view the judicial discipline and the prevailing practice in the High Court. Justice D.S. Bajpai was persuaded to the view that Justice Kamleshwar Nath had passed orders on March 18, 1986, releasing the bail application, the matter was therefore not tied up to him. However, the learned Judge failed to notice that when the bail Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026 19/23 application was listed before Justice Kamleshwar Nath on March 24, 1986 Respondent 1, for reasons known to him only, withdrew his application, as a result of which Justice Kamleshwar Nath dismissed the same as withdrawn. This fact was eloquent enough to indicate that Respondent 1 was keen that the bail application should not be placed before Justice Kamleshwar Nath. Long standing convention and judicial discipline required that respondent's bail application should have been placed before Justice Kamleshwar Nath who had passed earlier orders, who was available as Vacation Judge. The convention that subsequent bail application should be placed before the same Judge who may have passed earlier orders has its roots in principle. It prevents abuse of process of court inasmuch as an impression is not created that a litigant is shunning or selecting a court depending on whether the court is to his liking or not, and is encouraged to file successive applications without any new factor having cropped up. If successive bail applications on the same subject are permitted to be disposed of by different Judges there would be conflicting orders and a litigant would be pestering every Judge till he gets an order to his liking resulting in the 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 matters must be placed before the same Judge, if he is available for orders. Since Justice Kamleshwar Nath was sitting in court on June 23, 1986 the respondent's bail application should have been placed before him for orders. Justice D.S. Bajpai should have respected his own order dated June 3, 1986 and that order ought not to have been recalled, without the confidence of the parties in the judicial process being rudely shaken."
(underline is mine)
11. A similar issue came for consideration before the Hon'ble Full Bench of the Madhya Pradesh High Court in the Case of Santosh Bhawani Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026 20/23 Singh vs. State of M.P. (F.B.) reported in 2000 Cri. L.J. 1834. The Hon'ble Full Bench of the Madhya Pradesh High Court observed in paragraph '3' of the judgment as under: -
"3. The posting of the subsequent bail applications before the same Bench which had earlier rejected an application, was never considered to be an imperative of law, but this requirement was recognized in view of the long standing convention and judicial discipline. It was observed in Shahzad Hasan Khan's case that the convention that subsequent bail application should be placed before the same Judge who may have passed earlier orders has its roots in principle as it prevents abuse of process of Court and obviates possibility of an impression that a litigant is shunning or selecting a Court depending on whether the Court is to his liking or not. It was further observed that if successive bail applications on the same subject are permitted to be disposed of by different Judges, there would be conflicting orders and a litigant would be pestering every Judge till he gets an order to his liking resulting in the credibility of the Court and the confidence of the other side being put in issue and, therefore, judicial discipline required that such matters were placed before the same Judge, if he was available, for orders. Again, in a case where an accused had been enlarged on bail for a period of two months after his applications had earlier been rejected by another Bench, it was observed in State of Maharashtra v.
Buddhikota Subha Rao AIR 1989 SC 2292 that in such cases it was necessary to act with restraint and circumspection so that the process of the Court was not abused by a litigant and an impression was not created that a litigant has either successfully avoided one Judge or selected another to secure an order which he had not been able to obtain. It was emphasized that in such a situation, the proper course was to direct that the matter be placed before the same Judge who had disposed of the earlier Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026 21/23 application. The observations contained in Paragraph 7 of the report read as extracted below :--
"7. 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. 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 (1987) 2 SCC 684 : AIR 1987 SC 1613 :(1987 Cri.L.J. 1872).""
12. The Hon'ble Full Bench referred the Division Bench judgment in the case of Munna Singh vs. State of M.P. reported in 1989 MPLJ 414 (1990 Cri LJ 49) wherein it was observed that even if the earlier bail application had been dismissed as withdrawn or not pressed, a subsequent bail application of the same applicant should be Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026 22/23 placed for hearing before the same Judge who had rejected the earlier bail application, so long as he was available.
13. A similar view has been taken in the case of State of Maharashtra v. Budhikota Subbarao (Dr), reported in (1993) 2 SCC 567."
22. In course of submissions, learned counsel have agreed that as a matter of practice whenever a particular Bench expresses its inability to accept the submissions of learned counsel for grant of suspension of sentence and bail, in order to avoid the observations of the Court in the order, the counsel seeks permission of the Court to withdraw the application. Such prayers are allowed and the learned counsel for the appellant are permitted to withdraw the prayer at that particular stage with liberty to the appellant to file a fresh plea as and when advised. Such order of withdrawal though looks withdrawal simpliciter but as a matter of practice those orders are passed only on the request of learned counsel for the appellant when they are unable to persuade the Court to take a favourable view of the matter. In the light of the aforementioned discussions, this Court answers the reference in the chronological order hereinafter:-
(i) A subsequent application/ prayer for suspension of sentence and grant of bail after withdrawal of identical application/ prayer before a Bench must be placed before the Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026 23/23 same Division Bench if the Hon'ble Judges who constituted the earlier Bench are still available.
(ii) This Court affirms that in case one of the Hon'ble Judges who formed the earlier Division Bench has either retired or transferred from this Court, the subsequent application for the identical relief be listed before a Division Bench to which the another Hon'ble Judge who was on the earlier Division Bench shall be party, if His Lordship is still available.
23. Reference is, accordingly, answered.
24. List this matter before the appropriate Bench for consideration of the subsequent application for suspension of sentence and release on bail.
(Rajeev Ranjan Prasad, J) ( Mohit Kumar Shah, J) ( Sanjay Kumar Singh , J) A.F.R. SUSHMA2/-
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