Madhya Pradesh High Court
Badam Singh And Ors. vs State Of M.P. on 16 May, 2007
Equivalent citations: 2007(4)MPHT99
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
ORDER A.K. Shrivastava, J.
1. On behalf of all the appellants first application (I.A. No. 11942/2005) for suspension of sentence and grant of bail was filed. During the pendency of abovesaid application, another application (I.A. No. 1786/2006) for grant of temporary bail was filed on behalf of all the appellants. The prayer of interim bail was allowed only to appellant Nos. 1 and 3, namely, Badam Singh and Brijlal by Section A. Naqvi, J., on 30-1 -2006 and on the same date, as prayed by learned Counsel, prayer to allow interim bail to appellant No. 2 Sunderlal was rejected as withdrawn by the same Bench.
2. On 10-3-2006 first application for suspension of sentence (I.A. No. 11942/2005) was listed for hearing before the Bench comprising of A.P. Shrivastava, J. and the learned Judge directed the matter to be listed before appropriate Bench.
3. On 21-7-2006 again I.A. No. 11942/2005 was listed before A.P. Shrivastava, J., and it was directed to be listed before appropriate Bench because on 31-1-2006 temporary bail was granted to appellant Nos. 1 and 3 and the said prayer was not allowed to appellant No. 2, since it was not pressed on behalf of appellant No. 2, by the Bench comprising of S.A. Naqvi, J. Eventually, the case was listed on 25-8-2006 before S.A. Naqvi, J, and it was observed that since I.A. No. 11942/2005 is the first application which is still pending and is yet to be decided on merits, therefore, said application be listed before regular Bench. On bare perusal of order-sheet dated 25-8-2006 it is gathered that the said order was passed since only interim bail was granted to appellant Nos. 1 and 3 by S.A. Naqvi, J. on 31-1-2006.
4. On 11-10-2006 again the matter was listed before A.P. Shrivastava, J., who passed the following order:
This case is fixed for consideration of I.A. No. 11942/05, which is an application for suspension of sentence filed on behalf of the appellant Nos. 1 to 3 while I.A. No. 13893/06 was filed on behalf of appellant No. 3 for the same purpose.
It is submitted by the Counsel that earlier on 31-1-06 the Bench of Hon. Shri Justice S.A. Naqvi granted interim bail to the appellant Nos. 1 and 3 while the application of bail of the appellant No. 2 was dismissed as withdrawn on 31-1-06. On 21-7-06 this Court ordered to place the bail application before the Appropriate Bench but on 25-8-06 the Hon. Bench directed that the matter be placed before the regular Bench.
It is settled position that the successive bail applications in a pending appeal and bail application under Section 437/439 should be considered by the same Judge/Bench who decided first application unless it is not available for sufficient duration. This view was expressed in the case of Santosh v. State of M.P. reported in 2000 Cr.LJ 1834 (FB). Same propositions also laid down in the case of Narayan Prasad v. State of M.P. reported in 1993 MPLI 1 (FB). There is no distinction is made whether the earlier application is decided on merits or for interim purposes. Therefore, registry is directed to place the matter before the appropriate Bench, hence, the bail application of the appellant Nos. 1 to 3 be placed appropriate Bench.
Sd/-
A.P. Shrivastava Judge.
5. The matter was again placed before S.A. Naqvi, J. on 10-11-06 and according to the said Bench since I.A. No. 11942/05 is the first application for suspension of sentence, hence, the matter was directed to be listed before appropriate Bench.
6. On 30-11-2006 learned Single Bench comprising of A.P. Shrivastava, J., feeling difficulty in deciding I.A. No. 11942/05 on the basis of two Full Bench decisions of this Court Santosh (supra) and Narayan Prasad (supra), and on the basis of Division Bench decision of this Court Munna Singh Tomar v. State of M.P. 1989 JLJ 350, as well as on the basis of decision of Supreme Court Shahzad Hasan Khan v. Ishtiaq Hasan Khan and Anr. , framed the following question and directed to place the matter before Hon'ble the Chief Justice for referring it to Larger Bench:
Whether interim bail granted or bail application dismissed as withdrawn or not pressed shall come within the purview of successive bail application and shall be heard by the same Bench, who heard the earlier application or by the regular Bench.
In this manner Hon'ble the Chief Justice has referred this matter to us to decide the above said reference.
7. We have heard Shri R.K. Sharma, learned Counsel appearing for the appellants and Shri M.P.S. Bhadoria, learned Public Prosecutor for the respondent/State.
8. There is no law or any statutory rule making it obligatory or mandatory that all subsequent bail applications should be placed before the same Bench or Judge who passed earlier orders but it is only a rule of convenience based on judicial discipline, developed by a long standing convention.
9. The Supreme Court in the case at Shahzad Hasan Khan (supra), in Para 5 has held that long standing convention and judicial discipline required that bail application should have been placed before the same Judge who had passed earlier orders and who was also available. The Apex Court further held 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 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. The Supreme Court further came to hold 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 there would be wastage of Court's time. The Supreme Court further said that judicial discipline requires that such matter must be placed before the same Judge, if he is available for orders. The same principle has been reiterated by Full Bench of this Court in the case of Narayan Prasad (supra).
10. The controversy that successive bail applications should be placed before the same Bench/Judge, if the earlier one was dismissed as withdrawn or not pressed, so long said Bench is available, has been put to rest by the Division Bench of this Court in the case of Munna Singh Tomar (supra), which is based on the decision of Supreme Court Shahzad Hasan Khan v. Ishtiaq Hasan Khan (supra). The Division Bench in Para 31 has categorically held as under:
In view of the dictum of the Supreme Court in Shahzad Hasan Khan v. Ishtiaq Hasan Khan , even if the earlier bail application had been dismissed as withdrawn or not pressed, by any Single Judge of the High Court as a Vacation Judge sitting during the High Court Vacation or otherwise, to hear and dispose of bail applications either at the stage of the motion hearing or otherwise, a subsequent bail application of the same applicant should be placed for hearing before the same Judge who had rejected the earlier bail application, so long as he is available.
According to us the view taken by the Division Bench is correct and we are not inclined to take a different view or to refer the point to Larger Bench. The decision of Munna Singh Tomar (supra), was taken-up for consideration by the Full Bench of this Court again in the case of Santosh (supra), in which earlier Full Bench decision of Narayan Prasad (supra), was also considered and it was held that second or successive bail applications in a pending appeal or bail application under Section 437/439, Cr.PC should be considered by the Bench which has considered the first bail application unless the Bench which decided the earlier bail application is not available for a sufficient duration.
11. Thus we have no scintilla of doubt that if an application for suspension of sentence is either dismissed as not pressed or withdrawn, the successive bail applications should be listed before the same Bench/Judge who decided the earlier bail application unless the same Bench/Judge is not available for a sufficient duration.
12. The question that hinges now is whether a prayer for grant of bail as an interim measure in an application for suspension of sentence which has been allowed, successive application should be placed before the same Bench/Judge.
13. According to the view of S.A. Naqvi, J. since prayer of interim bail was allowed on 31-1-2006 to appellant Nos. 1 and 3 and there was no hearing on merit, therefore, I.A. No. 11942/05 should be placed before the regular Bench being first application on merit.
14. True I.A. No. 11942/05 when filed on 7-11-2005, was first application, but before the said application could be taken-up for consideration or could be decided on merit, another application (I.A. No. 1786/06) was filed on behalf of all the appellants later on for the grant of interim bail on account of the death of Smt. Tusiabai, who is mother of appellant Nos. 1 and 3 and the grand-mother of appellant No. 2. The prayer to allow interim bail to all the appellants was taken-up for consideration on 31-1-06 though I.A. No. 11942/05 was already pending. However prayer of grant of interim suspension of sentence was withdrawn on behalf of appellant No. 2 while, the prayer of appellant Nos. 1 and 3 to release them on temporary basis was allowed.
15. Indeed, the relief of grant of interim suspension of sentence was allowed to appellant Nos. 1 and 3 in second application, though it was decided first. Therefore, the prayer made in I.A. No. 11942/05 even if it is taken up for consideration later on, will amount to successive prayer. Because according to us, looking to the peculiar facts and circumstances, numbering of application is not the sole criterion and the crux of the matter is only that which prayer of consideration of application for suspension of sentence, though by way of interim measure, was taken into consideration first and, therefore, according to us, prayer made in I.A. No. 11942/05 would be deemed to be successive prayer though it is in first application. According to us, it is not the number of application which was filed earlier is the determining factor, but, the sole criterion is that when the prayer was considered first, that would be the determining factor. If during the pendency of first application on merit, another application is submitted later on for suspension of sentence on temporary basis and the prayer of suspension of sentence is considered in the second application, in that situation, the prayer to allow suspension of sentence in the first application which is already pending, would amount to successive prayer and, therefore, it should be placed before the same Bench/Judge who allowed/ disallowed first prayer to grant interim bail unless the said Bench/Judge is not available for a sufficient duration.
16. According to us demand of judicial discipline as envisaged in the case of Shahzad Hasan Khan (supra), is that successive application to release appellant on bail should be placed before the same Judge/Bench, if he is available. The same principle has been reiterated by Division Bench of this Court in the case of Munna Singh Tomar (supra), as well as in the Full Bench decision of this Court Santosh (supra). The view of S.A. Naqvi, J., that since interim bail was granted on 31-1-2006 to appellant Nos. 1 and 3 therefore I.A. No. 11942/05 should be placed before regular Bench cannot be accepted because if an application for suspension of sentence is dismissed as not pressed or withdrawn, in that situation also there is no order on merit, but the requirement of the judicial discipline as envisaged in the aforesaid decision of Munna Singh Tomar (supra) [which still holds the field and has not been diluted by Full Bench in Santosh (supra)], is that matter should be placed before the same Bench/Judge so long as he is available. The said decision is based on the decision of Shahzad Hasan Khan (supra).
17. Full Bench of this Court in the case of Santosh (supra), while answering the reference categorically held that successive bail application in a pending appeal should be considered by the Bench which has considered first application unless the Bench which decided earlier application is not available for a sufficient duration. Thus, according to the Full Bench also if the same Bench is available, the matter should be placed before it. However, it has been categorically held by the Full Bench that for a sufficient duration if the Bench is not available, the matter can be placed before other Bench. Thus, according to us, so far as grant of interim suspension of sentence is concerned, we.may say further that looking to the urgency and the ground on which temporary suspension is sought, such an application should be placed before the same Bench. However, if the same Bench is not available for a sufficient duration, which would mean and include the duration after the expiry of which relief may become infructuous, the said application may be placed before other Bench available so that the prayer for interim suspension of sentence may not become infructuous.
18. We, thus answer the reference referred to us in the following manner:
(I) The application for suspension of sentence dismissed as withdrawn or not pressed should be placed before the same Bench/Judge who passed the earlier order.
(II) The order of granting/rejecting interim bail earlier, would be deemed to be the order of consideration of first prayer and any successive prayer made in any number of application would come within the purview of successive prayer and shall be heard by the same Bench/Judge, who heard the application considering the interim prayer earlier, if the said Judge/Bench is available and it will be listed before other Bench/Judge only if the said Bench/Judge is not available for a sufficient duration, so that the prayer for interim suspension of sentence may not become infructuous.
The matter may now be placed before appropriate Bench.