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The first ground is that Crl.M.P.No.2994 of 2017 was dismissed on 04.10.2017 by the regular Presiding Officer i.e. Additional Metropolitan Sessions Judge for Trail of Communal Offices Cases-cum- VII Additional Metropolitan Sessions Judge, Hyderabad. But, when the regular Presiding Officer was on leave, suddenly, a petition was filed and an order was obtained by the second respondent/A-11 in Crl.M.P.No.3726 of 2017 before IV Additional Metropolitan Sessions Judge, Hyderabad, In-charge Additional Metropolitan Sessions Judge for Trail of Communal Offices Cases-cum-VII Additional Metropolitan Sessions Judge, Hyderabad, who is the in-charge officer of the original Court for a day or two.

As discussed above, a bail application is filed before a Sessions Judge and invited an order of dismissal. The application should be listed before the same Court. If, the Regular Officer who dealt with the application is on leave, then it must be listed before the Judge holding Additional Charge or Full Additional Charge during the leave period of the Regular Officer. The second respondent/A-11 after obtaining an adverse order on 04.10.2017 from the Regular Officer, filed Crl.M.P.No.3726 of 2017 and obtained an order in his favour on 05.12.2017 from the In-Charge Officer i.e. IV Additional Metropolitan Sessions Judge, Hyderabad, In-Charge Additional Metropolitan Sessions Judge for Trail of Communal Offices Cases-cum-VII Additional Metropolitan Sessions Judge, Hyderabad. Moreover, it is an undisputed 44 MSM,J CRLP_24624_2017 fact that the IV Additional Metropolitan Sessions Judge, Hyderabad, In- Charge Additional Metropolitan Sessions Judge for Trail of Communal Offices Cases-cum-VII Additional Metropolitan Sessions Judge, Hyderabad passed an order in Crl.M.P.No.3726 of 2017 which is now under challenge. The order passed by the Regular Officer is clear that the second respondent/A-11 does not deserve any anticipatory bail, as the investigation is still going on and custodial interrogation is necessary to collect real evidence from the possession of the second respondent/A-11. Though a reference was made in the criminal petition about dismissal of the Crl.P.No.3726 of 2017, the second respondent/A-11 did not disclose anything about the date of the order or the effect of order. It appears from the record that the bail application was listed before the Regular Judge on 29.11.2017 and on that day, the second respondent/A-11 reported not ready. Then the matter was heard by the In-Charge Officer and pronounced the order impugned in this criminal petition. Though, the second respondent/A-11 allegedly committed an offence long prior to filing of this petition and approached both High Court and Sessions Court for grant of bail and got dismissed, the petition under Section 438 Cr.P.C once by the High Court and other before the Sessions Court as withdrawn, but suddenly, obtained the order without any changed circumstances in the investigation.

In view of the law declared by the Apex Court in various judgments referred supra, granting pre-arrest bail to the second respondent/A-11 after dismissal of the earlier anticipatory bail application in Crl.M.P.No.2994 of 2017 without major changed circumstances in the investigation is a grave illegality. On this ground alone, the order is liable to be set-aside.

The second ground raised by the learned Senior Counsel for the petitioner is that, filing of an application immediately without any changed circumstances after dismissal of earlier bail application and taking advantage of the situation that the Regular Officer was on leave and listing the matter before the In-Charge Officer is a matter of serious concern and it is nothing but bench haunting. Learned Senior Counsel for the petitioner placed reliance on the judgment in Jagmohan Bahl and another v. State (NCT of Delhi) and another (referred supra), wherein, the Supreme Court in paragraphs 7, 8,9 & 10 held as follows:

d) In passing an order by the In-Charge Officer when the Regular Officer is on leave, for a day or two, without any imminent urgency, would amount to bench haunting, without taking into consideration the date of registration of crime, date of filing successive applications and their dismissal either as withdrawn or on merits.
e) The In-Charge Officer passed an order based on extraneous material by quoting an irrelevant law laid down by Punjab & Haryana High Court, and committed a grave error without considering the gravity, conduct and antecedents of the second respondent/A-11.