Shahzad
Hasan Khan Vs. Ishtiaq Hasan Khan & ANR [1987] INSC 134 (28 April 1987)
THAKKAR,
M.P. (J) 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 successive 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, another
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 earlier 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 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 community 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 encouraged 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 applications 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 subsequent 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 respected 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 recalling his
earlier order and enlarging the first respondent on bail. [40E; H; 39G-H; 41A]
Criminal
Appellate Jurisdiction: Criminal Appeal No. 464 of 1986.
From
the Judgment and Order dated 7.6.1986 of the Allahabad 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 Respondents.
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 application 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 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 application 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- 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 Kamleshwar Nath. Long standing convention and judicial
discipline 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 encouraged 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 Kamleshwar
Nath was sitting in Court on June 23, 1986 the respondent'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 seeking 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 been in a better position to ascertain facts to act judiciously.
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 institution 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 salutary 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 (they can seldom be proved
by concrete evidence) 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. 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 Information 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.
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