Himachal Pradesh High Court
Bobby Sharma vs State Of H.P. on 19 January, 2023
Author: Virender Singh
Bench: Virender Singh
.
Bobby Sharma versus State of H.P. CrMP (M) No. 112 of 2023 19.01.2023 Present: Mr. Manoj Pathak, Advocate, for the petitioner-
applicant.
Mr. Anup Rattan, Advocate General, with Mr. Varun Chandel and Mr. Manoj Chauhan, r Additional Advocates General, for the respondent.
HC Ashok Kumar, No. 75, P.S. Swarghat, District Bilaspur, H.P., is present in person with police record.
Status report filed.
2. Perusal of the bail application shows that the applicant has earlier moved CrMPs (M) No. 2120 of 2021 and 1347 of 2022 before this Court, however, both these applications were dismissed as withdrawn, vide orders, dated 25th November, 2021 and 8th July, 2022, respectively.
3. Interestingly, the second bail application bearing CrMP (M) No. 1347 of 2022 has not been listed before the Bench, where the earlier bail application of the applicant was filed and dismissed as withdrawn, whereas the same should have been listed before the same Bench, if available.
4. Another fact, which attracts the concern of the Court is that, in the status report filed by the police, the material facts, with regard to the filing and withdrawal of the earlier two bail applications, have not been found ::: Downloaded on - 19/01/2023 20:31:26 :::CIS .
-: 2 :-mentioned. The status report is totally silent about the criminal history, if any, qua the accused, allegedly found involved, in the present case. Even in the status report, no reasons to oppose the bail application have been mentioned.
5. The FIR in question has been registered at the instance of a senior police official, who is expected to mention all the material facts, regarding filing of the earlier bail applications as well as the criminal history of the bail applicant, if any, as well as, the other accused, involved in the offence. In the absence of all these material facts, in the status report, certainly, the counsel representing the State, would not be in a position to assist the Court, in an effective manner.
6. It is the high time, when the directions are required to be issued, in this regard. Hence, the Director General of Police, through the learned Advocate General, is directed to issue the instructions to all the Superintendents of Police in the State of Himachal Pradesh, who would further impart the instructions to all the Investigating Officers, to mention all the material facts, as mentioned above, in the status reports, which are invariably being filed in the Courts by the police.
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-: 3 :-7. Since two earlier bail applications were already filed by the applicant and were withdrawn, as stated above, as such, the present matter is liable to be placed before the same Bench.
8. While holding so, the view of this Court is fortified by the decision of the Hon'ble Supreme Court in M/s. Gati Limited versus T. Nagarajan Piramiajee & Anr., reported in 2019 (2) Criminal Court Cases 797 (SC). The relevant para-5 of the judgment is reproduced as under:
5. Another aspect of the matter deserves to be noted.
The first application for anticipatory bail was rejected by a certain learned Judge, but the second application for anticipatory bail was heard by another learned Judge, though the Judge who had heard the first application was available. This Court in the case of Shahzad Hasan Khan v. Ishtiaq Hasan Khan, (1987) 2 SCC 684, in a similar matter concerning filing of successive applications for anticipatory bail, made the following observations:
"5....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 creditability of the court and the confidence of the other side being pot 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...."::: Downloaded on - 19/01/2023 20:31:26 :::CIS
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-: 4 :-In State of Maharashtra v. Captain Buddhikota Subha Rao, 1989 Supp (2) SCC 605, this Court placing reliance upon Shahzad Hasan Khan (supra) observed:
"7. .....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..."
At the risk of repetition, we would like to quote similar observations made by this Court on subsequent occasions. In the case of Vikramjit Singh v. State of Madhya Pradesh, 1992 Supp (3) SCC 62, this Court observed:
"3....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..."
To the same effect, this Court observed in M. Jagan Mohan Rao v. P.V.Mohan Rao, (2010) 15 SCC 491:
"3. In view of the principle laid down by this Court, since the learned Judge who had refused bail in the first instance was available, the matter should have been placed before him. This Court has indicated that such cases of successive bail applications should be placed before the same Judge who had refused bail in the first instance, unless that Judge is not available..."::: Downloaded on - 19/01/2023 20:31:26 :::CIS
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-: 5 :-In Jagmohan Bahl and Another v. State (NCT of Delhi) and Another, 2015(1) Apex Court Judgments 312 (S.C.): 2015(1) Criminal Court Cases 410 (S.C.): (2014) 16 SCC 501 too, this Court has observed along the same lines:
"15....when the Sixth Additional Sessions Judge r had declined to grant the bail application, the next Fourth Additional Sessions Judge should have been well advised to place the matter before the same Judge. However, it is the duty of the prosecution to bring it to the notice of the Judge concerned that such an application was rejected earlier by a different Judge and he was available. In the entire adjudicatory process, the whole system has to be involved. The matter would be different if a Judge has demitted the office or has been transferred. 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."
9. In view of the above, the present bail application be listed before the Bench, where the first bail application, i.e. CrMP (M) No. 2120 of 2021, was filed and withdrawn.
( Virender Singh ) Vacation Judge January 19, 2023 ( rajni ) ::: Downloaded on - 19/01/2023 20:31:26 :::CIS