State of
Maharashtra Vs. Captain Buddhikota Subha Rao
[1989] INSC 297 (29
September 1989)
Ahmadi,
A.M. (J) 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 judicial discretion.
HEAD NOTE:
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 rejection of the group of
bail applications by Puranik, J., the pending application was disposed of by
Suresh J., who directed 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 (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 enlargement on
bail alive, [320B-C] (3) What is important to realise is that in the hail
application before Suresh, J. the respondent made an identical 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 consequence. [321D-E]
(4) 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
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.
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 International 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 secret/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 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
violation 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
interviews at the G.T. Hospital open ward will not survive. He was also of the view that
having regard to his spinal disorder 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 the
Jail. Therefore, since the passing of this order on 15th June, 1989, the operation of the High Court's order enlarging 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 contended that the learned Judge
in the High Court while passing 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
enlargement 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 communication
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. Jethmalani, 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 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 granted 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 colonial rulers. That is why they provided in Article 21 of the
Constitution that no person shall be deprived of his personal liberty except
according to procedure established by law.
It
follows therefore that the personal liberty of an individual 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 obligations on the authorities
in the event of arrest of an individual 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 prosecution 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 application No. 995/89 otherwise he would have
disposed it of by the very same common Order. Before the ink was dry on Puranik,
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? 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 substantial 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 circumstances. Such a practice if adopted would
be conclusive 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 substantial 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 jurisdiction
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.
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