Full Judgment Text
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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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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
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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