Patna High Court - Orders
Bhola Chaubey And Anr vs The State Of Bihar on 9 June, 2020
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.482 of 2016
Arising Out of PS. Case No.-76 Year-2014 Thana- ITARHI District- Buxar
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Bhola Chaubey and Anr.
... ... Appellants
Versus
The State of Bihar ... ... Respondent
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Appearance :
For the Appellants : Mr. Parijat Saurav, Advocate
For the Respondent : Mr. Abhay Kumar, APP
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL ORDER
5 09-06-2020I.A. No.1 of 2019 By way of the instant interlocutory application filed under Section 389(1) of the Code of Criminal Procedure, the appellant no.1 Bhola Choubey has prayed for suspension of sentence and grant of bail during pendency of the appeal.
2. He has been convicted under Section 304B of the Indian Penal Code and sentenced to undergo rigorous imprisonment for eight years.
3. He had moved earlier for bail under Section 389(1) of the Code of Criminal Procedure before this Court, which was considered and rejected vide order dated 27.01.2017 by another Hon'ble Judge, who is available.
4. The Court takes judicial notice of the fact that registry is repeatedly placing before me records of such appeals in which prayer for bail of the appellant(s) made under Section 389(1) of the Code of Criminal Procedure has been rejected Patna High Court CR. APP (SJ) No.482 of 2016(5) dt.09-06-2020 2/7 earlier by another Hon'ble Judge, who is available.
5. The long standing convention and judicial discipline requires that subsequent bail application should be placed before the same Hon'ble Judge, who had considered the first bail application, unless the Hon'ble Judge, who decided the earlier application is not available. The convention has got roots in principle which prevents abuse of the process of the court. If successive bail applications on the same subject are permitted to be disposed of by different Judges, there would be conflicting orders which would affect the credibility of the court and the confidence of the litigant. Such practice would also cause wastage of court's precious time.
6. In Shahzad Hasan Khan v. Ishtiaq Hasan Khan, [(1987) 2 SCC 684], the Supreme Court observed:-
"....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 Patna High Court CR. APP (SJ) No.482 of 2016(5) dt.09-06-2020 3/7 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. ..."
7. In State of Maharashtra v. Buddhikota Subha Rao, [1989 Supp (2) SCC 605] while placing reliance upon Shahzad Hasan Khan (supra), the Supreme Court observed:-
".... 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 Patna High Court CR. APP (SJ) No.482 of 2016(5) dt.09-06-2020 4/7 despatch. It will also result in consistency. ..."
8. In Vikramjit Singh v. State of M.P., [1992 Supp (3) SCC 62], the Supreme Court observed:-
".... Otherwise a party aggrieved by an order passed by one bench of the High Court would be tempted to attempt to get the matter reopened before another bench, and there would not be any end to such attempts. Besides, it was not consistent with the judicial discipline which must be maintained by courts both in the interest of administration of justice by assuring the binding nature of an order which becomes final, and the faith of the people in the judiciary...."
9. In M. Jagan Mohan Rao vs. P. V. Mohan Rao [(2010) 15 SCC 491], the Supreme Court held that where earlier bail application was rejected, subsequent bail application must be placed before the same Judge even though roster has been changed and Judge concerned is not regularly hearing bail application any more and only exception is that Judge is not available.
10. In Jagmohan Bahl & Anr. vs. State (NCT of Delhi) & Anr., [(2014) 16 SCC 501], the Supreme Court held that Judge, who has declined to entertain the prayer for grant of Patna High Court CR. APP (SJ) No.482 of 2016(5) dt.09-06-2020 5/7 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.
11. In Jagmohan Bahl (supra), the Supreme Court referred to its earlier judgment in Chetak Construction Ltd. vs. Om Prakash & Ors., [(1998) 4 SCC 577], wherein it had observed that a litigant cannot be permitted "choice" of the "forum" and every attempt at "forum-shopping" must be crushed with a heavy hand.
12. The aforesaid principle set out by the Supreme Court in the matters relating to subsequent or successive application under Section 439 of the Code of Criminal Procedure would also be applicable to the subsequent or successive bail application under Section 389 of the Code of Criminal Procedure.
13. In Rupam Pathak vs. The State of Bihar through Patna High Court CR. APP (SJ) No.482 of 2016(5) dt.09-06-2020 6/7 C.B.I., Bihar, Patna [Criminal Appeal (DB) No.393 of 2012], the appellant was convicted for charge of culpable homicide amounting to murder by the trial court. In appeal, a division bench of this Court vide order dated 14.05.2012, rejected her prayer for bail. Subsequently, she filed another interlocutory application, vide I.A. No.2075 of 2012, which was listed before another division bench, which granted her bail, vide order dated 08.01.2013.
14. One Sudip Kumar challenged the aforesaid order dated 08.01.2013 granting bail to the convict Rupam Pathak before the Supreme Court vide Criminal Appeal No.1836 of 2013 on amongst others the ground that though her bail was earlier rejected by a division bench, which was available, the subsequent application for bail was entertained by another Division Bench.
15. The Hon'ble Supreme Court while setting aside the aforesaid order dated 08.01.2013 granting bail to the respondent Rupam Pathak observed:-
"We are of the considered opinion that the prayer for bail made by the respondent Ms. Rupam Pathak should have been considered, if at all, by the same Division Bench of the High Court which had earlier declined bail to the respondent by the order dated 14.05.2012. This has been Patna High Court CR. APP (SJ) No.482 of 2016(5) dt.09-06-2020 7/7 settled practice for consideration of petitions for bail which are filed repeatedly in the same case in the High Court."
16. Keeping in mind the observations made by the Hon'ble Supreme Court in the cases noted above, since the Hon'ble Judge, who had rejected the prayer for bail of the appellant preferred under Section 389(1) of the Code of Criminal Procedure earlier is available, I am of the considered opinion that the present Interlocutory Application filed by the appellant should be placed before the same Hon'ble Judge.
17. In that view of the matter, let this application go out of my list to be listed before the appropriate bench under the orders of Hon'ble the Chief Justice.
18. While parting with this case, I direct the learned Registrar General and the learned Registrar (List) to give effect to the binding precedents of the Hon'ble Supreme Court noted hereinabove in letter and spirit while listing the subsequent bail application(s) filed either under Sections 438 or 439 or 389 of the Code of Criminal Procedure.
(Ashwani Kumar Singh, J.) Sanjeet/-
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