Punjab-Haryana High Court
M/S. Planet Edu Private Limited vs Vishal Mehta And Another on 14 February, 2012
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
CRM-M-15992-2011 [1]
:::::::
IN TH E HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM-M-15992-2011
Date of decision:14.02.2011
M/s. Planet EDU Private Limited
through Mr. Manish Mohta ...Petitioner
Versus
Vishal Mehta and another ...Respondents
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
Present: Mr. Manoj Singh, Advocate,
for the petitioner.
Mr. Sunil Panwar, Advocate,
for respondent No.1.
Mr. Sagar Deswal, AAG, Haryana,
for respondent No.2.
*****
Rakesh Kumar Jain, J.
This is a petition under Section 439(2) of the Code of Criminal Procedure, 1973 [for short "Cr.P.C."] for cancellation of order of anticipatory bail dated 26.04.2011 passed by the learned Additional Sessions Judge, Gurgaon in favour of respondent No.1 in a case registered vide FIR No.121 dated 05.08.2009, under Sections 420, 467, 468, 471 and 120-B of the Indian Penal Code, 1860 [for short "IPC"] read with Section 66 of the Information Technology Act, 2000 at Police Station Sector 40, Gurgaon.
In brief, one Sunil Nautiyal, Senior Manager of M/s Planet EDU Private Limited, Greenwood Plaza, Sector 45, Gurgaon, lodged the aforesaid FIR No.121 dated 05.08.2009 alleging therein that he had received information from his Head Office at Australia that one examinee, namely, Pranav Narendera Patel had taken IELTS examination at Amritsar. When the result of the said examinee was checked on the computer, then it was found that somebody has changed it, whereas the password of the said computer was known to only two employees of the CRM-M-15992-2011 [2] :::::::
company, namely, Krishan Kumar and Rajiv Krishan. It is also alleged that Krishan Kumar, who has been working in the company for the last 3 years, has admitted his guilt that he had changed the result of the said examinee in consideration of money.
Learned counsel for the petitioner has submitted that although respondent No.1 was not named in the FIR, yet he had applied for anticipatory bail which was dismissed by the learned Additional Sessions Judge, Gurgaon on 12.03.2010. He then had filed anticipatory bail before this Court by way of CRM-M-9555-2010 which was also dismissed on 26.05.2010. The allegation is that respondent No.1 again applied for anticipatory bail before the learned Additional Sessions Judge, Gurgaon on 21.04.2011 which has now been allowed on 26.04.2011 without any reference to the order of this Court dated 26.05.2010 by which anticipatory bail of respondent No.1 was dismissed. It is, thus, argued that there was a concealment on the part of respondent No.1 about the order of the High Court as well as there was no substantial change in the fact situation when the bail order was granted on 26.04.2011.
After notice, respondent No.1 and the State of Haryana have put in appearance through their respective counsels. Learned counsel for respondent No.1 has argued that there was substantial change after the dismissal of bail application by this Court on 26.05.2010. He has submitted that there was a change in the fact situation even before the order was passed on 26.05.2010 because the other co-accused, namely, Krishan Kumar, Neeraj and Rajeshwar, who had faced the trial pursuant to the registration of the said FIR No.121, were acquitted on 10.04.2010 but this fact could not be brought to the notice of this Court when the application of respondent No.1 was dismissed on 26.05.2010. It is further argued that the co-accused Pranav Narendra Patel, who was the alleged examinee and whose result was found to be changed, had applied for anticipatory bail which was allowed on 05.04.2011.
Learned counsel for the petitioner, in reply, has submitted that in the second bail application, there is no reference of order of this Court dismissing the anticipatory bail application of respondent No.1 on 26.05.2010 because respondent No.1 has only made a reference of the order of the learned Additional Sessions Judge, Gurgaon dated CRM-M-15992-2011 [3] :::::::
12.03.2010 by which his first bail application was dismissed. It was also submitted that while contesting the second bail application, status report was submitted by the police in which the fact of dismissal of the first bail application by this Court vide order dated 26.05.2010 was categorically mentioned but still the learned Court below did not make any reference to the said order while allowing the second anticipatory bail application on 26.04.2011. Lastly, it is argued that the successive application should have been filed before the same Court who had dismissed it.
In this regard, it is submitted by learned counsel for respondent No.1 that there was no occasion for respondent No.1 to disclose the order of this Court dated 26.05.2010 by which his anticipatory bail application was dismissed as he was required to bring to the notice of the learned Court below only about the order passed by the Coordinate Bench of the Additional Sessions Judge who had dismissed the earlier bail application. Learned counsel for respondent No.1 has also relied upon a decision of the Supreme Court in the case of Dolat Ram and others v. State of Haryana, (1995) 1 Supreme Court Cases 349 to contend that bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. He has also relied upon a Single Bench judgment of this Court in the case of Jagjit Singh v. Parduman Singh @ Daman Singh and another, 1993(2) R.C.R. (Criminal) 379 to the effect that cancellation of bail necessarily involves review of decision already made and can by and large be permitted only if it would no longer be conducive to fair trial to allow the accused to retain his freedom during the trial.
As against this, learned counsel for the petitioner has relied upon a decision of the Supreme Court in the case of State of Maharashtra v. Captain Buddikota Subba Rao, AIR 1989 Supreme Court 2292 and a Single Bench decision of this Court in the case of Dharampal v. State of Punjab and another, 2002 Cri. L. J. 1621.
The question, thus, involved is as to "whether the learned Trial Court should have granted bail when it was earlier dismissed by the High Court and that fact was not brought to its notice by the applicant and the CRM-M-15992-2011 [4] :::::::
successive bail application should be listed before the same Court"?
On facts, there is no dispute that when the second bail application was filed by respondent No.1 before the learned Trial Court on 21.04.2011, it was only averred that "earlier bail application of the petitioner has been dismissed by the Court of Shri Kuldeep Jain, ASJ, Gurgaon vide order dated 12.03.2010. But at that time the full facts of the case were not in the knowledge of petitioner". The fact of dismissal of bail application by this Court on 26.05.2010 in CRM-M-9555-2010 was actively concealed by the respondent No.1 which was although mentioned by the State in its reply at the time when the second bail application was contested but still it was not taken into consideration and the order granting bail was passed.
In the case of Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, 2005(2) SCC 42, wherein the High Court allowed the ninth bail application of the accused even after it has been dismissed earlier even by the Supreme Court, the Supreme Court had held as under:
"16. The principles of res judicata and such analogous principles although are not applicable in a criminal proceeding, but the courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our country. The findings of a higher court or a coordinate Bench must receive serious consideration at the hands of the court entertaining a bail application at a later stage when the same had been rejected earlier. In such an event, the courts must give due weight to the grounds which weighed with the former or higher court in rejecting the bail application. Ordinarily, the issues which had been canvassed earlier would not be permitted to be re-agitated on the same grounds, as the same it would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting.
17. The decision given by a superior forum, undoubtedly, is binding on the subordinate for and CRM-M-15992-2011 [5] :::::::
on the same issue even in bail matters unless of course, there is a material change in the fact situation calling for a different view being taken. Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Therefore, we are not in agreement with the argument of learned counsel for the accused that in view the guaranty conferred on a person under Article 21 of the Constitution of India, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by courts earlier including the Apex Court of the country."
In the case of Smt. Bimla Devi v. State of Bihar, 1994(1) R.C.R. (Criminal) 509, the Magistrate granted provisional bail after the High Court had rejected the successive bail applications, the conduct of the Magistrate was found to be against judicial discipline and the Chief Justice had asked to take action against the Magistrate on administrative side.
In the case of State of West Bengal v. Nebulal Shaw, 1997 (3) R.C.R. (Criminal) 39, it was held by the Division Bench of the Calcutta High Court that "it is trite saying that a person when admitted to bail by the High Court could be committed to custody only by the High Court. Therefore, person suffered rejection of bail could only agitate his claim to the very Court which rejected the prayer for bail".
In the case of Prabhu Yadav alias Prabhu Mukhia v. State of Bihar, 1994(2) East Cr. C. 341, it was held as under:
"However, the practice of the Court below of CRM-M-15992-2011 [6] :::::::
entertaining the bail applications by the same accused after the rejection of his earlier application by the High Court is not to be appreciated. The Court below cannot sit in review of revision against the order of the High Court and if this practice is allowed to prevail, it will undermine the dignity of the higher Court. The judicial discipline must be strictly maintained. If someone has any ground for the grant of bail after the order of rejection has been passed, he must approach the very higher Court which had earlier rejected the application. That very Court will be well within jurisdiction to reconsider the matter again in the light of the new and further circumstances and will pass suitable and appropriate order. The trial Court should not entertain an application for bail, even provisional bail, after the bail application has been rejected by the High Court."
In the case of State through Smt. Malti Gaur connected with Vijai Deep Singh v. State of U.P., 1990 Crl. L. J. 1894, it was held as under:
"There is no denial of this judicial convention that in order to maintain judicial discipline and consistency subordinate courts used to obtain endorsement on the bail applications that no other bail application of the accused is pending before any other Court. The object of this endorsement is that there will be no conflicting orders passed by the subordinate courts and the High Court and this would prevent passing of contrary orders by the subordinate courts to the orders of High Court. In the instant CRM-M-15992-2011 [7] :::::::
case this question was raised before the Judge concerned who observed that there is no bar in the Code of Criminal Procedure and, therefore, he has a right to pass orders of bail on the third bail application, in spite of the fact that a bail application of the accused is pending and is being heard by the High Court. The Additional Judge did not consider the prevalent practice and the long standing convention on which basis an endorsement was asked for on every bail application that no bail application is pending in any other court. As pointed out above, the long standing convention has also the binding effect in order to maintain judicial discipline and decorum and, therefore, in my opinion these long standing convention and judicial discipline cannot be ignored. The purpose behind this convention is to maintain public faith in judicial system as well as the orders passed by the courts. Whenever there is violation of this convention, litigants in general used to raise their voice and if these conventions will be allowed to be violated then in my opinion it will involve judicial anarchy. If the subordinate courts are permitted to grant bail in cases where bail applications are being heard by this Court and are pending, then conflicting and contrary orders can be passed and it would be very difficult to maintain consistency and in my opinion if there will be inconsistency then it will result in judicial anarchy."
In the case of Padam Chand Jain v. State of Rajasthan and another, 1991 Crl. L.J. 736, it was held that "I am therefore of the opinion that in the fact-situation of the present case where the earlier bail CRM-M-15992-2011 [8] :::::::
application had been dismissed by this Court, the judicial propriety demanded that the learned Sessions Judge should not have allowed the bail to the accused-non-petitioner".
This Court also, in the case of Pinder Singh v. State of Punjab, CRM-M-44923-2007 decided on 24.03.2008, has held that if the bail applicant has concealed the fact of decision of the earlier bail application, then he does not deserve the concession of bail.
In the case of Shahzad Hasan Khan v. Ishtiaq Hasan Khan and another, 1987(2) SCC 684, it was held by the Supreme Court that "longstanding 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".
The aforesaid principle was reiterated by the Supreme Court in the case of State of Maharashtra v. Capt. Buddikota Subba Rao, 1989(2) R.C.R. (Criminal) 612, which reads as under:
"Judicial discipline, propriety and comity demanded that the impugned order should not have been passed reversing all earlier orders including the one rendered by Puranik, J. only a couple of days before, in the absence of any CRM-M-15992-2011 [9] :::::::
substantial change in the fact-situation. 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 dispatch. 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.
For the above reasons we are of the view that there was no justification for passing the impugned order in the absence of a substantial change in the fact situation. That is what prompted Shetty, J. to describe the impugned order as `a bit out of the ordinary'. Judicial restraint demands that we say no more."
CRM-M-15992-2011 [ 10 ]
:::::::
The aforesaid view was reiterated by the different Full Benches of Madhya Pradesh High Court in the following decisions:
1. Narayan Prasad v. State of Madhya Pradesh, 1993 (2) RCR (Crl.) 1;
2. Santosh v. State of M.P., 2000(2) R.C.R. (Crl.) 497;
3. Gopal v. State of M.P., 2005(1) R.C.R. (Crl.) 126.
All the aforesaid decisions leads to a irresistible conclusion that a successive bail application should be listed before the same Court and in case of non-disclosure of the dismissal of the earlier bail application by the higher Court, the bail application has to be dismissed.
In view of the aforesaid discussion, the present petition is hereby allowed and the impugned order dated 26.04.2011 passed by the learned Additional Sessions Judge, Gurgaon is hereby set aside.
February 14, 2011 (Rakesh Kumar Jain) vinod* Judge