Subsequent Bail Application; Firos Ali Vs. State [Kerala High Court, 01-09-2016]

Bail – Subsequent Bail Application – Guidelines Issued – The subsequent bail application by the same accused will be entertained only if there is change of circumstance for filing such application. Subsequent bail application filed by the same accused shall be heard by the learned Judge who has considered and passed orders on the earlier bail application/applications in the same crime.

Subsequent Bail Application

IN THE HIGH COURT OF KERALAAT ERNAKULAM

MOHAN M.SHANTANAGOUDAR, Ag.C.J. & THOTTATHIL B.RADHAKRISHNAN & K.T.SANKARAN, JJ.

B.A.No.797 of 2015

Dated this the 1 st day of September, 2016

(CRIME NO. 1820/2014 OF PALAKKAD TOWN SOUTH POLICE STATION , PALAKKAD)

PETITIONER(S)/ACCUSED NO.1

FIROS ALI, PALAKKAD DISTRICT

BY ADV. SRI.NIREESH MATHEW

RESPONDENT(S)/COMPLAINANT

STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

O R D E R

Mohan M.Shantanagoudar, Ag.C.J.

1. The Apex Court, in the case of

Shahzad Hasan Khan v. Ishtiaq Hasan Khan, AIR 1987 SC 1613

(1) while taking notice of the fact that successive bail applications are being filed by the same accused in the same crime, held that the long standing convention and judicial discipline requiring the bail application/applications subsequently filed shall be placed before the learned Judge who passed orders on the bail application filed earlier need to be followed. It was observed further in the same matter thus:

“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 in as much 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. It 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 orders.”

2. From the aforementioned observations of the Apex Court, it is amply clear that in order to prevent abuse of the process of court and to prohibit the litigant from forum shopping in selecting the court depending on whether the court is to his liking or not and in order to discourage the filing of successive bail applications without any new factor having cropped up, the successive bail applications in the same crime by the same accused shall be placed before the same Judge who has disposed of the earlier bail application, if such learned Judge is available for orders. If such a procedure is adopted, conflicting orders could also be avoided.

3. The ratio laid down in the aforementioned judgment is reiterated by the Apex Court in the judgment in

State of Maharashtra v. Captain Buddhikota Subha Rao, AIR 1989 SC 2292

equivalent to [(1989) Supp. (2) SCC 605] wherein, it is observed thus:

“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 in as much 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.”

4. The aforementioned two judgments are referred with approval in

Jagmohan Bahl v. State (NCT of Delhi), 2014 (14) SCALE 224

wherein it is observed thus:

“On a perusal of the aforesaid authorities, it is clear to us that the learned Judge, who has declined to entertain the prayer for grant of bail, if available, should hear the second bail application or the successive bail applications. It is in consonance with the principle of judicial decorum, discipline and propriety. Needless to say, unless such principle is adhered to, there is enormous possibility of forum-shopping which has no sanction in law and definitely, has no sanctity. If the same is allowed to prevail, it is likely to usher in anarchy, whim and caprice and in the ultimate eventuate shake the faith in the adjudicating system. This cannot be allowed to be encouraged.”

It was further observed by the Apex Court in Jagmohan Bahl (supra) that it was the duty of the prosecution to bring to the notice of the Judge concerned that such a bail application was rejected earlier by a different Judge and that he was available for orders. While concluding so, their Lordships have observed as under:

“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.”

5. The result of aforementioned successive pronouncements of the Apex Court is that the judicial discipline requires that if successive bail applications are filed by the same accused, in the same crime, the matter must be placed before the same Judge who disposed of the earlier application, if he is available for orders, in order to prevent abuse of the process of court; to prevent an impression being created that a litigant is avoiding or selecting a court to secure an order to his liking; to save time of the court as a Judge familiar with the facts will be able to dispose of the subsequent application/ applications effectively and as the same would be conducive to judicial discipline. There cannot be any dispute that the litigants cannot be engaged in forum shopping in as much as if allowed, the same would lead to injustice and travesty of justice.

6. However, the Registry of this Court is faced with certain doubts in carrying out the dictum laid down by the Apex Court in view of certain orders on the judicial side by learned Judges, which can be summarised as under: