Andhra HC (Pre-Telangana)
Gunda Koteswararao vs The State Of Andhra Pradesh Represented ... on 2 August, 2004
Equivalent citations: 2004(6)ALT105
JUDGMENT P.S. Narayana, J.
1. Heard Sri Muniraja and Sri Ramakrishna, Counsel representing Sri Nimmagadda Satyanarayana, Counsel for the petitioner and the learned Additional Public Prosecutor representing the State.
2. This application is moved under Section 389 of the Code of Criminal Procedure (for short 'the Code'). The mother of Gunda Koteswararao, the appellant in the criminal appeal, Gunda Koteswaramma moved the present application praying for suspension of the execution of sentence imposed against the petitioner by judgment dated 05.07.2004 in S.C.No.47 of 1999 on the file of the III Additional District and Session Judge (Fast Tract Court), Ongole and release him on bail stating that the petitioner is confined in Central Prison, Rajahmundry. It is not in controversy that a prior application for similar relief in Crl.M.P.No.5045 of 2004 was moved on behalf of the petitioner-appellant-accused by Gunda Anjaneyulu, the father of the petitioner and in the said Crl.M.P.No.5045 of 2004, on 12.07.2004 while admitting the criminal appeal and posting the same for final hearing immediately after Dasara Vacation of 2004, the learned Judge made the following order:
"I see no reason to suspend the execution of sentence imposed against the petitioner by Judgment, dated 05.07.2004 in S.C.No.47 of 1999 on the file of the III Additional District and Sessions Judge, Ongole. Hence, the Crl.M.P. is dismissed".
Despite the same, the present application is filed. Section 389 of the Code corresponds to Section 426 of the Code of 1898 and the said provision reads as under:
" Sub-section (1) of Section 389 of the Code makes it clear that:-
(1) Pending in appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, (i) order that execution of sentence or order appealed against be suspended and, also (ii) if he is in confinement, he be released on bail, or on his own bond".
3. The words "the Appellate Court may" though on suggestive of the exercise of power being discretionary, the same to be exercised judiciously. The words "for reasons to be recorded by it in writing" would indicate that the Court may have to apply mind to the nature of offences, the quantum of sentence, the findings recorded by the learned Judge in the order appealed against and other relevant facts.
4. There is clear distinction between bail and suspension of sentence. Thus, suspension of execution of sentence to be ordered only in exceptional circumstances, though, normally bail may have to be granted to the accused pending appeal, especially, when he was on bail during the trial and findings in the order and nature of offences and quantum of sentence warrant exercise of discretion in favour of the accused. Grant of bail pending appeal to be the normal rule and continuance in jail pending appeal to be an exception. No hard and fast rule can be laid down in this regard except stating that the exercise of such power must depend upon sound judicial discretion. Guidelines in this regard cannot be laid down since the same may be only illustrative and cannot be exhaustive at any rate. On the maintainability of second application or successful applications in BABU SINGH; V THE STATE OF UTTAR PRADESH, while dealing with Supreme Court (Enlargement of Criminal Jurisdiction) Act (28 of 1970) while holding that the rejection of bail application would not operate as a bar for fresh application giving more details and developments for consideration, the Apex Court observed as under:
"We must weight the contrary factors to answer the test or reasonableness, subject to the need for securing the presence of the bail applicant. It makes sense to assume that the man on bail has a better chance to prepare or present his case than one remanded in custody. And if public justice is to be promoted, mechanical detention should be demoted. In the United States, which has a constitutional perspective close to ours, the function of bail is limited, 'community roots' of the applicant are stressed and, after the Vera Foundation's Manhattan Bail Project, monetary suretyship is losing ground. The considerable public expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negligible consideration. Equally important is the deplorable condition, verging on the inhuman, of out sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible.
A few other weighty factors deserve reference. All deprivation of liberty is validated by social defence and individual correction along an anti-criminal direction. Public justice is central to the whole scheme of bail law, Fleeing justice must be forbidden but punitive harshness should be minimized. Restorative devices to redeem the man, even through community service, medicative drill, study classes or other resources should be innovated, and playing foul with public peace by tampering with evidence, intimidating witnesses or committing offences while on judicially sanctioned 'free enterprise', should be provided against. No seeker of justice shall play confidence tricks on the court or community. Thus, conditions may be hung around bail orders, not to cripple but to protect. Such is the holistic jurisdiction and humanistic orientation invoked by the judicial discretion correlated to the values of our constitution."
5. The learned Additional Public Prosecutor also had drawn the attention of this Court to a decision in DUVVU UMAPATHI REDDY V. STATE OF ANDHRA PRADESH, 2000(2) ALD (CRL.) 193 (AP) and would submit that the second application of this nature is maintainable. Maintainability of an application more than once is something different from exercising such power by Court. One has to make out changed circumstances or like reasons.
6. As already referred to supra, it is not in controversy that when the father moved a similar application, an order was passed and the mother is coming up with the present application. No doubt, submissions were made that there are certain changed circumstances. Office of High Court Judge is an office of high dignity and a constitutional functionary. When a sitting Judge makes an order, another learned Judge except in the case of exercising appellate powers sitting in a Division Bench or in like cases normally cannot pass a different order, which would amount to annulling or modifying the prior order. It would be always desirable to place papers before the same learned Judge. It would be not only healthy practice but in consonance with the dignity of the office.
7. Article 214 of the Constitution of India dealing with High Courts for States simply states that there shall be High Court for each State.
8. Article 215 dealing with High Courts to be Courts of record, reads as under;
"Every High Court shall be a Court of record and shall have all the powers of such a Court including the power to punish for contempt of itself".
9. Article 216 dealing with constitution of High courts, reads as under;
"Every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint."
10. Likewise, Article 219 dealing with oath or affirmation by Judges of High Courts reads as under;
'Every person appointed to be a Judge of a High Court shall, before he enters upon his office, make and subscribe before the Governor of the State, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose of the Third Schedule".
10. In Third Schedule VIII, a form of oath or affirmation to be made by the Judges of a High Court reads hereunder;
"I, A.B., having been appointed Chief Justice (or a Judge) of the High Court at (or swear in the name of God of).......do___________ that I will bear true faith and allegiance to the solemnly affirm Constitution of India as by law established, (that I will uphold the sovereignty and integrity of India,) that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill will and that I will uphold the Constitution and the laws."
In UNION OF INDIA V. PRRATIBHA BONNERJEA, the Apex Court while dealing with the office of a High Court Judge observed as under:
"The question to be considered is whether under the Constitution there is, strictly speaking, a relationship of master and servant between the Government and a High Court Judge? In order to answer this question a few provisions of the Constitution need to be noticed. Firstly, Article 50 enjoins that the State should take steps to separate the Judiciary from the Executive. Next, we may notice Chapter V in Part VI of the Constitution which concerns High Courts in the States. Article 214 provides that there shall be a High Court for each State or a group of States. Article 217 posits that every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, etc., who shall hold office until he attains the age of 62 years. A judge once appointed can vacate office by tendering his resignation or on his elevation to the Supreme Court or transfer to another High Court or on being removed from office by the President in the manner provided by Article 24(4), i.e, after an address by each House of Parliament supported by a majority of the total membership of that House and by majority of not less than two thirds of the members present and voting has been presented to the President. The removal can be on the ground of proved misbehavior or incapacity. Article 219 expects every person appointed to be a Judge of the High Court to make and subscribe an oath or affirmation according to the form set out in the Third Schedule. That form is Form VIII which inter alia requires the Judge to swear in the name of God or to solemnly affirm that he would truly and faithfully and to the best of his ability and judgment perform his duties without fear or favour, affection or ill will. These words clearly indicate that the judicial function must be discharged without being influenced by extraneous considerations. Independence and impartiality are the two basic attributes essential for a proper discharge of judicial functions. A Judge of a High Court is, therefore, required to discharge his duties consistently with the conscience of the Constitution and the laws and according to the dictates of his own conscience and he is not expected to take orders from anyone. Since a substantial volume of litigation involves government interest, he is required to decide matters involving government interest day in and day out. He has to decide such cases independently and impartially without in any manner being influenced by the fact that the Government is a litigant before him. In order to preserve his independence his salary is specified in the Second Schedule, vide Article 221 of the Constitution. He, therefore, belongs to the third organ of the State, which is independent of the other two organs, the Executive and the Legislature. It is, therefore, plain that a person belonging to the judicial wing of the State can never be subordinate to the other two wings of the State. A Judge of the High Court, therefore, occupies a unique position under the Constitution. He would not be able to discharge his duty without fear or favour, affection or ill will, unless he is totally independent of the Executive, which he would not be if he is regarded as a government servant. He is clearly a holder of a Constitutional office and is able to function independently and impartially because he is not a government servant and does not take orders from anyone. That is why in UNION OF INDIA V. SANKALCHAND HIMATLAL SHETH Chandrachud, J. said in paragraph 32 at p.224 "......... the rejection of MR Seervai's argument.... should not be read as a negation of his argument that there is no master and servant relationship between the Government and High Court Judges".
11. Bhagwati, J. in his separate judgment said the same thing in paragraph 49 when he observed: "a Judge of the High Court is not a government servant, but he is the holder of a constitutional office".
12. In TIRUPATI BALAJI DEVELOPERS PRIVATE LIMITED V. STATE OF BIHAR, while dealing with the relationship of High Courts vis-à-vis Supreme Court, the Apex Court held as under:
"Under the constitutional scheme as framed for the judiciary, the Supreme Court and the High Courts both are Courts of record. The High Court is not a Court 'subordinate' to the Supreme Court. In a way the canvass of judicial powers vesting in the High Court is wider inasmuch as it has jurisdiction to issue all prerogative writs conferred by Article 226 of the Constitution for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose while the original jurisdiction of Supreme Court to issue prerogative writs remains confined to the enforcement of fundamental rights and to deal with some such matters, such as Presidential election or inter-State disputes which the Constitution does not envisage being heard and determined by High Courts. The High Court exercises power of superintendence under Article 227 of the Constitution over all subordinate Courts and Tribunals; the Supreme Court has not been conferred with any power of superintendence. If the Supreme Court and the High Courts both were to be thought of as brothers in the administration of Justice, the High Court has larger jurisdiction but the Supreme Court still remains the elder brother. There are a few provisions which give an edge, and assign a superior place in the hierarchy, to Supreme Court over High Courts. So far as the appellate jurisdiction is concerned, in all civil and criminal matters, the Supreme Court is the highest and the ultimate Court of appeal. It is the final interpreter of the law. Under Article 139-A, the Supreme Court may transfer any case pending before one High Court to another High Court or may withdraw the case to itself. Under Article 141 the law declared by the Supreme Court shall be binding on all Courts, including High Courts, within the territory of India. Under Article 144 all authorities, civil and judicial, in the territory of India - and that would include High Court as well - shall act in aid of the Supreme Court.
In a unified hierarchical judicial system which India has accepted under its Constitution, vertically the Supreme Court is placed over the High Courts. The very fact that the Constitution confers an appellate power on the Supreme Court over the High Courts, certain consequences naturally flow and follow. Appeal implies in its natural and ordinary meaning the removal of a cause from any inferior Court or Tribunal to a superior one for the purpose of testing the soundness of decision and proceedings of the inferior Court or Tribunal. The superior forum shall have jurisdiction to reverse confirm annul or modify the decree or order of the forum appealed against and in the event of a remand the lower forum shall have to re-hear the matter and comply with such directions as may accompany the order of remand. The appellate jurisdiction inherently carries with it a power to issue corrective directions binding on the forum below and failure on the part of latter to carry out such directions or show disrespect to or to question the propriety of such directions would - it is obvious- - be destructive of the hierarchical system in administration of justice. The seekers of justice and the society would lose faith in both."
13. In Harbhajan Singh v. State Of Punjab, 1977 Crl.L.J. 1424 the Division Bench of Punjab and Haryana High Court held that the administration of justice is a matter of substance and not merely one of academics and it would afford scant satisfaction to the accused if after serving their full or substantial portion of their jail sentence, their appeal succeeds and they are merely acquitted of the charge and this factor cannot be ignored and hence the accused are entitled to the concession of bail.
14. May be that the situation would be different, if the learned Judge, who made the order is no more or retired or transferred or elevated to a further higher-up in the judicial hierarchy. But, however, when the learned Judge of the High Court of record is available, it would be always a just and healthy practice to place the papers before the self same learned Judge.
15. Let the office list the Criminal Miscellaneous Petition referred to supra before the same learned Judge for appropriate orders forthwith, after obtaining necessary orders from the Hon'ble the Chief Justice, this being concerned with the liberty of the accused.