Full Judgment Text
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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