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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: CAPTAIN BUDDHIKOTA SUBHA RAO

DATE OF JUDGMENT29/09/1989

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) SAIKIA, K.N. (J)

CITATION:  1989 AIR 2292            1989 SCR  Supl. (1) 315  1989 SCC  Supl.  (2) 605 JT 1989 (4)     1  1989 SCALE  (2)707

ACT:     Constitution of India, 1950: Article 136--Court does not interfere  with  order granting bail--Court  will  interfere when judicial discipline is scarified at the alter of  judi- cial discretion.

HEADNOTE:     The respondent, a retired Naval Officer, was apprehended at  the  Bombay International Airport when he was  about  to take a flight to New York. On search of his luggage  certain highly  sensitive documents were found, and he was  arrested for  breach of the provisions of the Official  Secrets  Act, 1923 and the Atomic Energy Act, 1962.     The respondent filed a number of applications for  being released  on bail inter alia on medical grounds. This  batch of  applications were rejected by Puranik, J. The  attention of  Puranik, J. was, however, not drawn to the  pendency  of one  more  such  application, in which  the  respondent  had prayed for grant of bail to facilitate yogic exercises under expert guidance at his residence. The respondent had  sought precisely  the same relief in an earlier  application  which had  been rejected by Puranik, J. Two days after the  rejec- tion  of the group of bail applications by Puranik, J.,  the pending  application was disposed of by Suresh J.,  who  di- rected  that the respondent be enlarged on bail, on  certain conditions which amounted to virtual house arrest.     Before  this Court the appellant-State has assailed  the propriety  of the order granting bail passed by  Suresh,  J. just  two days after Puranik, J. had rejected the  batch  of bail  applications. On the other hand, it was  contended  on behalf of the respondent that this Court should refrain from exercising  jurisdiction  under Article 136 to  cancel  bail granted by the High Court. Allowing the appeal, this Court,     HELD: (1) It is true that ordinarily this Court does not interfere  with an order granting bail, but in the facts  of this  case the Court feels that judicial discipline will  be sacrificed at the alter of judicial discretion if the  Court refused  to exercise its jurisdiction under Article  136  of the Constitution. [322C] 316

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   (2)  When  the batch of bail applications  were  put  up before  Puranik,  J.,  his attention was not  drawn  to  the pendency  of  one more such application. Even  if  the  said application  was  filed  after the  hearing  started  before Puranik,  J., the learned Judge could have been  told  about its  pendency before he rendered his decision. This  conduct of  the respondent has given rise to the argument  that  the respondent  desired to keep the question regarding  his  en- largement on bail alive, [320B-C]     (3)  What  is important to realise is that in  the  hail application before Suresh, J. the respondent made an identi- cal  request  made earlier in an application  placed  before Puranik, J. Once that application was rejected there was  no question  of  granting a similar prayer. That  is  virtually overuling the earlier decision without there being a  change in the fact-situation, which would mean a substantial change having  a  direct  impact on the earlier  decision  and  not merely  cosmetic  changes which are of little or  no  conse- quence. [321D-E]     (4)  Judicial discipline, propriety and comity  demanded that the impugned order should not have been passed  revers- ing  all earlier orders including the one rendered by  Pura- nik, J., only a couple of days before, in the absence of any substantial change in the fact situation. [321F]      (5) In such a situation the proper course 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 an impression being created that  a litigant is avoiding or selecting a court to secure an order of his liking.      Shahzad Hasan Khan v. Ishtiaq Hasan Khan, [1987] 2  SCC 684, referred to.

JUDGMENT:      CRIMINAL  APPELLATE JURISDICTION: Criminal  Appeal  No. 603 of 1989.      From  the  Judgment  and Order dated  8.6.1989  of  the Bombay High Court in Crl. Application No. 995 of 1989. B .R. Handa and A.M. Khanwilkar for the Appellant.      Ram  Jethmalani, P.K. Dey, Ms. Rani  Jethmalani  (N.P.) and D.M. Nargolkar for the Respondents. The Judgment of the Court was delivered by 317     ABMADI, J. Special leave granted. Heard counsel on  both sides. The facts leading to this appeal are as under:     On May 30, 1988, the respondent, a retired Naval Officer of the rank of Captain was apprehended at the Bombay  Inter- national  Airport (Sahar Airport) when he was about to  take the  Air-India Flight from Bombay to New York. On search  of his  luggage certain highly sensitive documents  marked  se- cret/confidential were found. A complaint was lodged against him for the breach of the provisions of the Official Secrets Act,  1923 and the Atomic Energy Act, 1962. Soon  after  his arrest  he filed an application dated 22nd  September,  1988 for bail. That application was rejected by the High Court on 29th  September, 1988. Thereafter, he filed a writ  petition challenging the validity of Sections 3 and 5 of the Official Secrets Act, 1923 but that writ petition was dismissed by  a Division  Bench  of the Bombay High Court on  8th  December, 1988. In the meantime, he had preferred an application dated 21st  November,  1988 for transfer of his  case  to  another learned  Judge  and for grant of bail.  While  granting  the prayer  for transfer the Division Bench refused  to  enlarge

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the  respondent  on bail by its order dated  19th  December, 1988. Soon thereafter on 18th January, 1989, the  respondent filed the third application for bail which too was  rejected by  Suresh, J. Having thus failed to secure  enlargement  on bail  the respondent approached the learned Sessions  Judge, Bombay  for a direction to the jail authorities that  he  be produced  before the Head of the Orthopaedic  Department  of J  .J. Hospital as he had some spinal pain.  The  respondent also moved a separate application for being admitted to  the Naval  Hospital. The learned Sessions Judge acceded  to  his request and got him examined by Dr. Dongaonkar who submitted his report on 3rd February, 1989. On 10th February 1989, the respondent  moved another application complaining of  viola- tion of Court’s order and for enlargement on bail. This  was followed  by  yet another application for  bail  dated  16th February,  1989  and in the alternative for a  direction  to admit  him  to a suitable hospital where he  may  be  served meals  cooked at his home. On the said  application  certain directions were given and the respondent was shifted to  the general  ward  of  G.T. Hospital, Bombay.  The  Trial  Court flamed  charges  against the respondent  on  27th  February, 1989. On 24th April, 1989, the respondent filed yet  another application for grant of bail on medical grounds and in  the alternative  for being admitted to a hospital or  any  other place  where  he can conveniently  receive  instructions  in yogic exercises. All his pending applications made for  bail etc.  were rejected by Puranik, J. by a common  order  dated 6th June, 1989, except Criminal Application No. 995 of  1989 preferred in April, 1989 318 for  enlargement  on bail on medical grounds.  Possibly  the fact  that he had referred this application was not  brought to the notice of Puranik, J. Two days after the rejection of the  group of bail applications by Puranik, J.,  application No. 995 of 1989 was disposed of by Suresh, J., who  directed that  he be enlarged on bail for a period of two  months  on his  furnishing security in the sum of Rs. 10,000  with  one surety on the terms and conditions catalogued at (a) to  (g) of the order. The learned Judge felt that by permitting  him to  be  kept in virtual house arrest the  State’s  grievance that  he meets visitors including mediamen and gives  inter- views  at the G.T. Hospital open ward will not  survive.  He was also of the view that having regard to his spinal disor- der it was necessary that he had proper facilities for yogic exercises  under  expert guidance. It is this order  of  the learned  Judge  that is assailed before us by the  State  of Maharashtra.     When  this matter came up for admission  before  Shetty, J., during vacation, the learned Judge, after taking note of the  fact that respondent was suffering  from  disc-prolapse for  which  he was treated by Dr. Dongaonkar and  had  shown considerable improvement and after evaluating the opinion of Dr. Khadilkar who had certified that the respondent was  fit to attend court, observed as under:               "Having  regard to the nature of the  offences               charged, the sickness or disability complained               of, the nature of the treatment required,  the               certificates given by the Doctors, I am of the               opinion  that the bail order made by the  High               Court   appears  to  be  a  bit  out  of   the               ordinary." The learned vacation Judge then directed notice to issue and stayed  the  operation of the High Court’s Judgment  of  8th June, 1989. While doing so, he observed that the  respondent should  be given necessary treatment of Yogic  exercises  in

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the Jail. Therefore, since the passing of this order on 15th June, 1989, the operation of the High Court’s order  enlarg- ing the respondent on bail and placing him in virtual  house arrest  on the terms and conditions set out in  the  court’s order, is stayed.     The  learned counsel for the State of  Maharashtra  con- tended that the learned Judge in the High Court while  pass- ing  the  impugned  order of 8th June, 1989  ought  to  have realised that only two days before his colleague Puranik, J. had  rejected  all  the pending  bail  applications  (except Criminal  Application No. 995/89) preferred at intervals  by the  respondent. In Criminal Application No. 375/89  one  of the prayers 319 made in paragraph 7(e) was as under:               "That  the applicant may, pending his  illness               be  ordered  and directed to be  placed  under               house  arrest  and/or be released on  bail  on               such terms and conditions as may be     Puranik, J. considered this request of the respondent in paragraph 24 of his order of 6th June, 1989 and rejected the same. Despite the rejection of the said application No.  375 of 1989 along with a group of applications seeking  enlarge- ment on bail and other directions, Suresh, J. granted almost the same request only two days later while disposing of  the application No. 995/89. That is what Shetty, J. described as ’a  bit  out of the ordinary’ when the matter  came  up  for hearing  before this Court on 4th August, 1989 a  communica- tion  received  from the respondent requesting  that  he  be brought to Delhi by plane to enable him to argue the  matter in  person  was placed before the Court.  This  Court  while rejecting his request for being brought by plane from Bombay to Delhi observed that he may inform the Court if he desired legal  aid.  At the next hearing instead  of  informing  the Court whether he desired legal aid, he repeated his  request for personal appearance through his son which was  rejected. However, the Supreme Court Legal Aid Committee was requested to  appoint an Advocate to appear and argue the case on  his behalf. The matter was listed for hearing on 8th  September, 1989.     When the matter was called on for hearing, Mr. Jethmala- ni,  learned counsel for the respondent made a fervent  plea that  having  regard  to the age and the  condition  of  the respondent,  this  Court  should recall  its  earlier  order staying  the  operation  of the impugned  order  and  should refuse to exercise its jurisdiction under Article 136 of the Constitution of India. The submission of Mr. Jethmalani  was that  ordinarily bail should be granted to under trials  and this Court should refrain from exercising jurisdiction under Article  136  to cancel bail granted by the High  Court.  He made an endeavour to satisfy us that even on merits this was a  fit case for grant of bail notwithstanding the fact  that several bail applications, made by the respondent one  after another. were .rejected by the High Court. We cannot  accede to the submissions of Mr. Jethmalani.     It is evident from the facts stated above that after the respondent’s successive applications for bail were  spurned, he  requested for being admitted to the hospital on  medical grounds, that is, on the 320 ground  that he was suffering from spinal disorder.  He  was first admitted to the J.J. Hospital and was later shifted to G.T. Hospital open ward on his request. After improvement to the  extent of 70% and above was reported by Dr.  Dongaonkar who  treated him and on Dr. Khadilkar declaring him  fit  to

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attend the court, he contended that he had consulted a  yoga instructor  who advised him a course in yogic  exercises  to get rid of his spinal disorder. In the meantime he had filed a  number of applications for being released on  bail.  This batch  of  applications were put up before Puranik,  J.  for disposal. The attention of Puranik, J. was not drawn to  the pendency of one such application No. 995/89 till he disposed of  the  batch of such bail applications on 6th  June  1989. Even  if  the said application was filed after  the  hearing started  before  Puranik, J., the learned Judge  could  have been told about its pendency before he rendered his decision on 6th June, 1989. This conduct of the respondent has  given rise to the argument that the respondent desired to keep the question  regarding his enlargement on bail alive.  We  have pointed  out that in one of the applications No.  375/89  he had sought precisely the same relief which came to be grant- ed by the impugned order. The question then is whether there was  justification for releasing the respondent on  bail  to facilitate  yogic  exercises under expert  guidance  at  his residence,  albeit  under conditions of  surveillance,  even though  Puranik,  J.  had rejected a more  or  less  similar prayer  only  two days before? Should this Court  refuse  to exercise jurisdiction under Article 136 of the  Constitution even  if it is satisfied that the jurisdiction  was  wrongly exercised?     Liberty occupies a place of pride in our socio-political order.  And  who  knew the value of liberty  more  than  the rounding  fathers  of  our Constitution  whose  liberty  was curtailed time and again under Draconian laws by the coloni- al  rulers. That is why they provided in Article 21  of  the Constitution that no person shall be deprived of his person- al liberty except according to procedure established by law. It  follows therefore that the personal liberty of an  indi- vidual  can be curbed by procedure established by  law.  The Code  of  Criminal Procedure, 1973, is one  such  procedural law. That law permits curtailment of liberty of  anti-social and anti-national elements. Article 22 casts certain obliga- tions on the authorities in the event of arrest of an  indi- vidual accused of the commission of a crime against  society or  the  Nation. In cases of under trials charged  with  the commission of an offence or offences the court is  generally called  upon to decide whether to release him on bail or  to commit him to jail. This decision has ’to be made, mainly in non-bailable  cases,  having  regard to the  nature  of  the crime, the circumstances in which it was committed, the 321 background  of the accused, the possibility of  his  jumping bail,  the impact that his release may make on the  prosecu- tion witnesses, its impact on society and the possibility of retribution,  etc. In the present case the  successive  bail applications  preferred by the respondent were  rejected  on merits  having regard to the gravity of the offence  alleged to  have committed. One such application No. 36 of 1989  was rejected  by Suresh, J. himself. Undeterred  the  respondent went  on  preferring successive applications for  bail.  All such pending bail applications were rejected by Puranik,  J. by a common order on 6th June, 1989. Unfortunately, Puranik, J. was not aware of the pendency of yet another bail  appli- cation No. 995/89 otherwise he would have disposed it of  by the very same common Order. Before the ink was dry on  Pura- nik, J. ’s order, it was upturned by the impugned order.  It is  not as if the court passing the impugned order  was  not aware  of  the decision of Puranik, J., in fact there  is  a reference  to the same in the impugned order. Could this  be done in the absence of new facts and changed  circumstances?

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What is important to realise is that in Criminal Application No.  375  of  1989, the respondent had  made  an  indentical request  as  is obvious from one of the  prayers  (extracted earlier)  made therein. Once that application  was  rejected there was no question of granting a similar prayer. That  is virtually  overruling  the earlier  decision  without  there being a change in the fact-situation. And, when we speak  of change, we mean a substantial one which has a direct  impact on  the  earlier decision and not  merely  cosmetic  changes which  are  of  little or no consequence.  Between  the  two orders  there was a gap of only two days and it is  nobody’s case  that during these two days drastic changes  had  taken place  necessitating the release of the respondent on  bail. Judicial discipline, propriety and comity demanded that  the impugned  order  should not have been passed  reversing  all earlier  orders  including the one rendered by  Puranik,  J. only a couple of days before, in the absence of any substan- tial  change  in  the fact-situation. In such  cases  it  is necessary  to act with restraint and circumspection so  that the process of the Court is not abused by a litigant and  an impression does not gain ground that the litigant has either successfully avoided one Judge or selected another to secure an order which had hitherto eluded him. 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  circum- stances.  Such a practice if adopted would be  condusive  to judicial discipline and would also 322 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. In this  view that  we take we are fortified by the observations  of  this Court  in paragraph 5 of the judgment in Shahzad Hasan  Khan v.  Ishtiaq  Hasan  Khan, [1987] 2 SCC 684.  For  the  above reasons  we are of the view that there was no  justification for passing the impugned order in the absence of a  substan- tial  change  in the fact situation. That is  what  prompted Shetty,  J. to describe the impugned order as ’a bit out  of the  ordinary’.  Judicial restraint demands that we  say  no more.     It is true that ordinarily this Court does not interfere with an order granting bail but in the facts of this case we feel judicial discipline will be sacrificed at the altar  of judicial  discretion if we refuse to exercise our  jurisdic- tion under Article 136 of the Constitution.     In  the  result we allow this appeal and set  aside  the impugned  order  dated 8th June, 1989 granting bail  to  the respondent-accused. R.S.S.                                                Appeal allowed. 323