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PETITIONER: SHAHZAD HASAN KHAN

       Vs.

RESPONDENT: ISHTIAQ HASAN KHAN & ANR.

DATE OF JUDGMENT28/04/1987

BENCH: THAKKAR, M.P. (J) BENCH: THAKKAR, M.P. (J) SINGH, K.N. (J)

CITATION:  1987 AIR 1613            1987 SCR  (3)  34  1987 SCC  (2) 684        JT 1987 (2)   323  1987 SCALE  (1)1249  CITATOR INFO :  F          1989 SC2292  (7)

ACT:     Criminal  Procedure Code, 1973--Sections 436--439  Bail- ’Application     for     grant      of--Rejected--Subsequent application--To  be placed before the same Judge who  passed the earlier order--Successive applications not to be  posted before different Judges.     Practice  and  Procedure--Bail--Successive  applications for grant of--To be placed before the same Judge who  passed the earlier order-Desirability of.

HEADNOTE:     The  first respondent and three others were  alleged  to have  murdered the deceased. The first respondent  absconded after  the  occurrence and surrendered in court  later.  The trial court rejected his bail application, and three succes- sive  bail applications were rejected by a Single  Judge  of the High Court. The first respondent made another attempt in the  High Court to get bail. Having regard to  the  judicial discipline and prevailing practice in the High Court, anoth- er  Single  Judge of the High Court, sitting as  a  Vacation Judge,  ordered that the bail application be  placed  before the same learned Judge who had dealt with the case on earli- er  occasions. However, a few days later, the  Judge,  after recalling his earlier order, granted bail on the ground that the trial could not be commenced or completed as directed by another  Single Judge and because of the delay  the  accused was entitled to bail, and that the liberty of a citizen  was involved. The complainant has filed an appeal to this  Court against the aforesaid order.     Allowing  the appeal and setting aside the order of  the High Court granting bail, this Court,     HELD:  1.  Normally this Court does not  interfere  with bail  matters and the orders of the High Court  relating  to grant  or  rejection of bail are generally  accepted  to  be final but some disturbing features have persuaded this Court to interfere in the instant case, with the order of the High Court. [38E] 2.  No  doubt liberty of a citizen must be  zealously  safe- guarded by

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         35 court.  Nonetheless, when a person is accused of  a  serious offence like murder and his successive bail applications are rejected  on  merit, there being prima facie  material,  the prosecution  is entitled to place correct facts  before  the Court.  Liberty  is to be secured through  process  of  law, which  is administered keeping in mind the interests of  the accused,  the near and dear of the victim who lost his  life and  who reel helpless and believe that there is no  justice in the world as also the collective interest of the communi- ty so that parties do not lose faith in the institution  and indulge in private retribution. [40C-E]     3.  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 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 encour- aged to file successive applications without any new  factor having  cropped up. 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. Judicial  discipline  re- quires  that  such a matter must be placed before  the  same Judge, if he is available for orders. [39B-D]     4.  One of the salutory principles in granting  bail  is that  the Court should be satisfied that the  accused  being enlarged  on bail will not be in a position to  tamper  with the evidence. When allegations of tampering of evidence  are made, it is the duty of the court to satisfy itself  whether those allegations have basis and if the allegations are  not found  to be concocted it would not be a proper exercise  of jurisdiction in enlarging the accused on bail. [40FH]     5. In the instant case, as three successive bail  appli- cations  made  on behalf of the first  respondent  had  been rejected and finally disposed of by the same Judge, it would have been appropriate and desirable and also in keeping with the  prevailing practice in the High Court that  the  subse- quent  bail application also should have been placed  before the same Judge for disposal. In tact, being conscious of the long standing convention and judicial discipline, the  Judge himself passed an order directing the bail application to be placed  before  the other Judge. The Judge should  have  re- spected his own earlier order and ought not to 36 have  recalled it without the confidence of the  parties  in the judicial process being rudely shaken. [38E-G; 39E]     6.  The  Judge was unduly influenced by the  concept  of liberty,  disregarding  the facts of the  case.  There  were serious  allegations, but the Judge did not either  consider or test the same. Objections were raised against hearing  of the  bail  application on a number of grounds and  time  was sought  for  filing a detailed counter affidavit  which  was refused.  He granted bail simply on the ground that  liberty was involved, which is the case in every criminal case, more particularly in a murder case where a citizen who, let alone losing liberty, has lost his very life, and that because  of the delay in the trial the accused was entitled to bail. The Judge committed serious error in recallint his earlier order and enlarging the first respondent on bail. [40E; H;  39G-H; 41A]

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JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 464 of 1986.     From the Judgment and Order dated 7.6.1986 of the  Alla- habad High Court in Crl. Misc. Case No. 1320 of 1986. Anil Kumar Gupta for the Appellant. U.R.  Lalit, K.B. Rohtagi and S.K. Dhingra for the  Respond- ents. The following Order of the Court was delivered. Special leave granted.     This  appeal is directed against the order of  the  High Court  of  Allahabad, Lucknow Bench, dated  7th  June  1986, granting  bail to respondent No. 1, Ishtiaq Hasan  Khan.  We allowed the appeal and set aside the order of the High Court and  issued directions that respondent No. 1, Ishtiaq  Hasan Khan  be taken into custody forthwith. In that order we  had directed  that  the reasons will follow.  Hence  this  order articulating our reasons.     Ishtiaq  Hasan Khan, respondent No. 1 and three  others, namely,  Naseem,  Shiva Kant Sharma and  Asghar  are  facing trial for the murder of Zaheer Hasan Khan at about 9.00 a.m. on March 3, 1985, in a public place in Mahmood Nagar leather market. After the occurrence respondent No. 1 absconded  and he  surrendered in court on April 22, 1985. He  applied  for bail before the Sessions Judge, Lucknow, which was rejected. He approached the Lucknow Bench of the           37 High  Court  of Allahabad with an application for  grant  of bail. The application was opposed by the complainant and  as well as by the Public Prosecutor. Justice Kamleshwar Nath by his  order dated September 18, 1985 refused to  enlarge  the respondent on bail and rejected the bail application.  After a lapse of two months’ time respondent No. 1, Ishtiaq  Hasan Khan  filed another bail application before the High  Court. That  application was placed before Justice Kamleshwar  Nath who  rejected the same by his order dated January 21,  1986. Within  a few days thereafter respondent No. 1 made  another application  before  Justice  P. Dayal.  The  learned  Judge having  regard  to the judicial  discipline  and  prevailing practice in the High Court, directed that the bail  applica- tion be placed before Justice Kamleshwar Nath who had passed orders rejecting earlier applications for bail. In pursuance of that order the bail application was placed before Justice Kamleshwar Nath. Meanwhile, respondent No. 1 made two futile attempts  before the trial court for the grant of bail  even though his application for bail was pending before the  High Court. On March 18, 1986 Justice Kamleshwar Nath was sitting in  a Division Bench and the respondent’s  counsel  appeared before  him  seeking  his permission for  listing  the  bail application  before him. The learned Judge passed  an  order releasing the bail application, but it appears that  inspite of that order the bail application was not listed before any other  Judge,  instead it again came up  for  orders  before Justice  Kamleshwar  Nath on March 24, 1986.  On  that  date counsel  for the respondent No. 1 for some  unknown  reasons did  not  press  the bail application, on  his  request  the application was dismissed as withdrawn.     Meanwhile, one of the accused Shiva Kant Sharma filed an application for transfer of the trial from the court of  the First  Additional  Sessions Judge to any  other  court.  The complainant had also filed an application in the High  Court for  the cancellation of bail granted to Shiva Kant  Sharma. Respondent No. 1 also made an application from jail for  the

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transfer of the case. All the three miscellaneous cases were heard  by  D .N. Jha, J. By a composite order  dated  10.12. 1985,  Justice D.N. Jha refused to transfer the case and  he further  refused  to cancel the bail granted to  Shiva  Kant Sharma.  The learned Judge, however, made observations  that the trial should be concluded expeditiously and if necessary the court should hold day-to-day trial to conclude the  same at an early date. In pursuance to the order of Justice  D.N. Jha, the First Additional Sessions Judge fixed several dates for  the trial of the case but the accused persons  obtained adjournments on one pretext or the other with the result the trial  could  not  be commenced or  completed  within  three months as desired by Justice D.N. Jha. Mean- 38 while, the respondent No. 1 made another application on June 3, 1986 before Justice D.S. Bajpai Vacation Judge for  grant of bail. The learned Judge directed that the application  be placed  before Justice Kamleshwar Nath who was sitting as  a Vacation  Judge with effect from 23rd June, 1986.  Two  days later, another application was made on behalf of  respondent No.  1  before Justice D.S. Bajpai for recalling  his  order dated  June  3,  1986, the application was  directed  to  be placed  before  the Court on June 6, 1986. On June  6,  1986 when  the application was taken up the Assistant  Government Advocate-appearing for the prosecution and the complainant’s advocate  both appeared and filed their appearance.  Justice D.S. Bajpai directed the application to be listed on June 7, 1986. On that date the complainant’s counsel filed  applica- tion  raising  objections against the heating  of  the  bail application  on  a number of grounds and he  further  sought three days time to file detailed counter affidavit in  reply to  the allegations made in bail  application. Justice  D.S. Bajpai, did not grant time. Instead he heard the  arguments, he  recalled  his order dated June 3, 1986 for  placing  the matter  before Kamleshwar Nath and enlarged  the  respondent No.  1 on bail. Aggrieved, Shahzad Hasan Khan the  complain- ant,  who is the son of the deceased Zaheer Hasan Khan,  has approached this court by means of this appeal.     Normally this court does not interfere with bail matters and  the orders of the High Court are generally accepted  to be  final  relating to grant or rejection of bail.  In  this case, however, there are some disturbing features which have persuaded us to interfere with the order of the High  Court. The  matrix  of facts detailed above would show  that  three successive  bail applications made on behalf  of  respondent No.  1 had been rejected and disposed of finally by  Justice Kamleshwar Nath. In that view it would have been appropriate and desirable and also in keeping with the prevailing  prac- tice  in the High Court that the bail application which  was filed  in June 1986 should have been placed  before  Justice Kamleshwar  Nath  for  disposal. In fact on  June  3,  1986. Justice  D.S.  Bajpai being conscious of this  practice  and judicial discipline himself passed order directing the  bail application to be placed before Justice Kamleshwar Nath  but subsequently on 7th June 1986 he recalled his order. We  are of  the  opinion that Justice D.S. Bajpai  should  not  have recalled  his order dated June 3, 1986 keeping in  view  the judicial discipline and the prevailing practice in the  High Court.  Justice D.S. Bajpai was persuaded to the  view  that Justice Kamleshwar Nath had passed orders on March 18, 1986, releasing the bail application, the matter was therefore not tied up to him. However, the learned Judge failed to  notice that when the bail application was listed 39 before  Justice  Kamleshwar Nath on March 24, 1986  the  re-

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spondent No. 1, for reasons known to him only, withdrew  his application,  as a result of which Justice  Kamleshwar  Nath dismissed  the  same as withdrawn. This  fact  was  eloquent enough  to indicate that respondent No. 1 was keen that  the bail  application should not be placed before  Justice  Kam- leshwar  Nath. Long standing convention and judicial  disci- pline  required  that respondent’s bail  application  should have  been  placed before Justice Kamleshwar  Nath  who  had passed earlier orders, who was available as Vacation  Judge. 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 encour- aged to file successive applications without any new  factor having  cropped  up 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 creditability of the court and  the confidence  of the other side being put in issue  and  there would  be wastage of courts’ time. Judicial  discipline  re- quires  that  such  matter must be placed  before  the  same judge, if he is available for orders. Since Justice Kamlesh- war Nath was sitting in Court on June 23, 1986 the  respond- ent’s  bail application should have been placed  before  him for  orders. Justice D.S. Bajpai should have  respected  his own  order  dated June 3, 1986 and that order ought  not  to have been recalled, without the confidence of the parties in the judicial process being rudely shaken.     As  regards merits, for granting the bail,  the  learned Judge  appears to be influenced by two factors, firstly,  he observed that the trial could not be commenced or  completed as  directed  by Justice D .N. Jha by his order  dated  10th December, 1985. In this respect the complainant has filed  a detailed  affidavit  giving the details of  the  proceedings before  the  trial  court. On a perusal of the  same  it  is evident that the accused persons obtained adjournment  after adjournment  on  one pretext or the other and they  did  not allow  the court to proceed with the trial. On June 7,  1986 complainant’s counsel had filed a written application  seek- ing  three days, time to file counter affidavit  giving  the details  of the proceedings pending before the trial  court. We  are  constrained  to observe that  Justice  D.S.  Bajpai refused  to  grant the prayer and proceeded  to  grant  bail simply  on  the  ground that the liberty of  a  citizen  was involved  which  is  the case in every  criminal  case  more particularly in a murder case where a citizen who let  alone losing 40 liberty has lost his very life. Another ground for  granting bail  was that trial was delayed therefore the  accused  was entitled  to bail. This also cannot be helped if a  litigant is encouraged to make half a dozen applications on the  same point  without any new factor having arisen after the  first was  rejected.  Had the learned Judge granted  time  to  the complainant  for  filing counter  affidavit,  correct  facts would  have been placed before the  Court and it could  have been  pointed  out that apart from the  inherent  danger  of tampering with or intimidating witnesses and aborting  case, there was also the danger to the life of the main  witnesses or to the life of the accused being endangered as experience of  life has shown to the members of the profession and  the judiciary,  and in that event, the learned Judge would  have

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been  in a better position to ascertain facts to  act  judi- ciously.  No  doubt liberty of a citizen meat  be  zealously safeguarded  by court, nonetheless when a person is  accused of  a  serious offence like murder and his  successive  bail applications  are rejected on merit there being prima  facie material, the prosecution is entitled to place correct facts before  the court. Liberty is to be secured through  process of  law, which is administered keeping in mind the  interest of the accused, the near and dear of the victim who lost his life  and  who feel helpless and believe that  there  is  no justice in the world as also  the collective interest of the community so that parties do not lose faith in the  institu- tion  and indulge in private retribution. Learned Judge  was unduly  influenced by the concept of  liberty,  disregarding the facts of the case.     The  learned judge also failed to consider the  question that there were serious allegations of tampering of evidence on  behalf of the accused persons. Vishram and Jagdish,  two eye  witnesses  had filed written  applications  before  the trial  court  making serious allegations against  Masod  and Masroof,  brothers  of respondent No. 1. They  alleged  that they  had  been  kidnapped and their  signatures  and  thumb impressions had been obtained on some blank papers and  they were  being threatened with dire consequences and  they  re- quested  the court for being granted police protection.  One of  the  salutory principles in granting bail  is  that  the court should be satisfied that the accused being enlarged on bail will not be in a position to tamper with the  evidence. When  allegations of tampering of evidence are made,  it  is the duty of the court to satisfy itself whether those  alle- gations  have basis (they can seldom be proved  by  concrete evidence)  and if the allegations are not found to  be  con- cocted it would not be a proper exercise of jurisdiction  in enlarging  the  accused on bail. In the instant  case  there were  serious  allegations  but the learned  Judge  did  not either consider or test the same. 41     Having  regard  to the facts and circumstances  of  this case we are of the opinion that the learned judge  committed serious error in recalling his order dated June 3, 1986  and enlarging the respondent on bail. The occurrence took place, in the broad day light, in a busy market place and there are a  number of eye witnesses to support the case  against  the respondent who was named as an assailant in the First Infor- mation Report. Immediately after the occurrence be could not be  traced  (it was alleged that he had absconded  for  more than  a  month, attempts were made on his behalf  to  tamper with evidence. In view of these facts and circumstances  the respondent No. 1 was not entitled to bail if the seriousness of  the  matter was realised and a judicious,  approach  was made.  We  had accordingly set aside the-order of  the  High Court and directed that respondent No. 1, Ishtiaq Hasan Khan shall  be taken into custody forthwith and the  trial  shall proceed in accordance with law expeditiously. N.P.V.                                                Appeal allowed. 42