In the instant case, when the Additional Sessions
Judge-6 had declined to grant the bail application, the next
Additional Sessions Judge-04 should have been well
advised to place the matter before the same Judge.
However, it is the duty of the prosecution to bring it to the
notice of the concerned Judge that such an application was
rejected earlier by a different Judge and he was available.
In the entire adjudicatory process, the whole system has to
be involved. The matter would be different if a Judge has
demitted the office or has been transferred. Similarly, in
the trial court, the matter would stand on a different
footing, if the Presiding Officer has been superannuated or
transferred.
The fundamental concept is, if the Judge is
available, the matter should be heard by him.
That will
sustain the faith of the people in the system and nobody
would pave the path of forum-shopping, which is decryable
in law.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2335 OF 2014
[Arising out of S.L.P. (Crl.) No. 8355 of 2014]
Jagmohan Bahl & Anr.V State (NCT of Delhi) & Anr.
Dated;DECEMBER 18, 2014.
Dipak Misra, J.
The present appeal, by special leave, is directed
against the order dated 01.10.2014 passed by the High
Court in CRLMC No. 3202/2014, whereby the learned
Single Judge, in exercise of the jurisdiction under Section
439(2) read with Section 482 of the Code of Criminal
Procedure, 1973 (CrPC), has set aside the order dated
20.06.2014 passed by the learned Additional Sessions
2
Judge, Saket Courts, Delhi, who had granted the benefit of
anticipatory bail to the appellants in FIR No. 92/2014
instituted for the offence punishable under Section 420/34
IPC, registered at P.S. Defence Colony, New Delhi.
2.
The factual matrix that is required to be exposited for
the purpose of disposal of the present appeal is that the 2 nd
respondent filed an FIR against the present appellants
alleging that both of them had conspired against him and
in furtherance of the said conspiracy, they had subjected
him to cheating, criminal breach of trust and have
misappropriated the money.
As alleged in the FIR, the
appellants allured the said respondent to buy a property
situated at C-93, Defence Colony, New Delhi, for which he
had paid an advance of Rs.1,50,00,000/- (Rupees one crore
fifty lakhs). As the narration would unfurl, it was apprised
by the appellants that the property comprising entire
basement floor and entire ground floor with one servant
quarter with servant’s W.C. and with two car parking
space, with structure standing thereon admeasuring 401
sq. yards along with proportionate undivided, indivisible
3
and impartible share of ownership rights in the land
underneath would be sold to him and he will be delivered
vacant peaceful physical possession.
There are series of
other allegations which would show that on the basis of
oral
agreement,
certain
amount
was
paid
and
on
30.04.2013, an agreement to sell was duly executed
between the parties.
It is also the case of the informant
that remaining part of the amount i.e. Rs.4,50,00,000/-
(Rupees four crores fifty lakhs) was to be paid to the
accused persons at the time of registration of the sale deed
on or before 26.10.2013.
3.
As the allegations proceed, after receipt of the
amount, the appellants disputed the amount and delayed
the execution of the sale deed. On an enquiry being made,
the 2nd respondent came to know that the appellants had
entered into an agreement to sell the said property to a
third person. That was the foundation to lodge the FIR.
4.
After the lodgment of the FIR, the appellants moved
an application under Section 438 CrPC for grant of
anticipatory bail which was dismissed by the learned
4
Additional Sessions Judge-6, South East, Saket Courts,
New Delhi vide order dated 26.05.2014.
appellants
after
expiry
of
three
weeks
Thereafter, the
filed
second
application under Section 438 CrPC which came to be
considered by the learned Additional Sessions Judge-04
(Special Judge, NDPS), South East, New Delhi, who allowed
the same by the impugned order dated 20.06.2014.
The
aforesaid order was assailed before the High Court on two
grounds, first the accused persons had misrepresented the
facts and that there was no change in the circumstances;
and second, the application for grant of anticipatory bail
could not have been entertained by the learned Additional
Sessions Judge-04, for the first application was rejected by
the learned Additional Sessions Judge-6, South East Saket.
5.
The High Court referred to certain decisions with
regard to the parameters for grant of anticipatory bail,
absence of change of circumstances, conduct of the
accused persons in the manner in which they had executed
the agreement for sale, the need for custodial interrogation
and the impropriety in view of the fact that another court
5
had entertained the application for consideration despite
the fact that the first application was earlier rejected by
another court and analyzing these aspects, set aside the
order for grant of bail. It is necessary to state here that the
High Court has drawn a distinction between an order
passed which is perverse in nature inviting the wrath of
impropriety and an order cancelling order of bail due to
supervening circumstances after the grant of bail.
6.
We have heard Mr. Parag P. Tripathi, learned senior
counsel for the appellants, Ms. Pinki Anand, learned ASG
for the State of NCT of Delhi and Mr. Sanjeev Kumar,
learned counsel for the informant, the 2 nd respondent.
7.
On a perusal of the order passed by the High Court,
we find that it has felt disturbed that the second
application under Section 438 CrPC was allowed by
another Additional Sessions Judge who had not dealt with
the first application. It has opined that the Second Judge
could not have entertained the bail application especially
when the earlier Judge was available.
To elaborate, the
Additional Sessions Judge who has dealt with the matter
6
on the first occasion, had neither been transferred from the
said court, nor had he become incapacitated to come to
court nor was he absent for a considerable length of time.
As it appears, the High Court has taken exception to the
fact that the application was moved when the 2 nd Judge
was allotted the roaster to deal with the application under
Section 438 CrPC.
8.
To appreciate the analysis made by the High Court we
have bestowed our anxious consideration and perused the
order impugned.
As far as the distinction drawn by the
High Court between the categories of situations, namely, a
bail order passed in a perverse manner excluding the
relevant matters and considering the extraneous matters
which deserves to be lancinated in exercise of supervisory
jurisdiction to nullify the same and the other, which is
fundamentally and absolutely situation based for cancelling
the order of bail because of violation of the terms and
conditions of the order granting bail and other supervening
circumstances, the distinction gets support from the recent
decisions rendered in Ash Mohammad V. Shiv Raj Singh
7
@ Lalla Babu & Anr.1 and Neeru Yadav v. State of U.P.
and Another2 which have taken note of number of earlier
authorities.
However, the said situation or circumstance
does not arise in the case at hand.
9.
In this context, we may refer with profit to the
decision in Shahzad Hasan Khan V. Ishtiaq Hasan
Khan and Anr3 wherein this Court took note of the fact
that three successive bail applications made on behalf of
the accused had been rejected and disposed of finally by
one Judge of the High Court.
However, another learned
Judge, despite being aware of the situation, granted bail to
the respondent. In that context, this Court held that long
standing convention and judicial discipline requires bail
application to be placed before the learned Judge who had
passed earlier orders.
Proceeding further this Court
observed:
“...... 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
1
(2012) 9 SCC 446
Crl. Appeal No. 2587 of 2014 (judgment pronounced on 16.12.2014)
3
(1987) 2 SCC 684
2
8
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 courts’ time. Judicial discipline
requires that such matters 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”.
10.
In State of Maharashtra V. Captain Buddhikota
Subha Rao4, the Court, placing reliance on Shahzad
Hasan Khan (supra), opined that:
“...... 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 conducive to judicial discipline and would also
save the court’s time as a judge familiar with the
4
(1989) Supp (2) SCC 605
9
facts would be able to dispose of the subsequent
application with despatch. It will also result in
consistency”.
11.
In M. Jagan Mohan Rao v. P.V. Mohan Rao5, this
Court reiterating the principle laid down in Shahzad
Hasan Khan (supra), Buddhikota Subha Rao (supra) and
Harjit Singh V. State of Punjab6 held as under:
“In view of the principle laid down by this Court,
since the learned Judge who had refused bail in
the first instance was available, the matter
should have been placed before him. This Court
has indicated that such cases of successive bail
applications should be placed before the same
Judge who had refused bail in the first instance,
unless that Judge is not available”.
12.
In this context, we may refer to a two-Judge Bench
decision in
Vikramjit
Singh
V.
State
of
Madhya
Pradesh7, wherein bail granted by one Judge of the High
Court was cancelled by another Judge.
This Court, on
being moved by the accused, opined that such a practice is
not consistent with judicial discipline which is expected to
be maintained by courts.
observed:-
5
6
7
(2010) 15 SCC 491
(2002) 1 SCC 649
AIR 1992 SC 474
Proceeding further, the Court
10
“..... Otherwise, a party aggrieved by an order
passed by one Bench of the High Court would be
tempted to attempt to get the matter re-opened
before another Bench, and there would not be
any end to such attempts. Besides, it was not
consistent with the judicial discipline which
must be maintained by Courts both in the
interest of administration of justice by assuring
the binding nature of an order which becomes
final, and the faith of the people in the judiciary.”
13.
On a perusal of the aforesaid authorities, it is clear to
us that the learned Judge, who has declined to entertain
the prayer for grant of bail, if available, should hear the
second bail application or the successive bail applications.
It is in consonance with the principle of judicial decorum,
discipline and propriety.
Needless to say, unless such
principle is adhered to, there is enormous possibility of
forum-shopping which has no sanction in law and
definitely, has no sanctity. If the same is allowed to prevail,
it is likely to usher in anarchy, whim and caprice and in
the ultimate eventuate shake the faith in the adjudicating
system. This cannot be allowed to be encouraged.
In this
regard we may refer to the pronouncement in Chetak
Construction Ltd. V. Om Prakash and others8, wherein
8
(1998) 4 SCC 577
11
this Court has observed that a litigant cannot be permitted
“choice”
of
the
“forum”
and
every
attempt
at
“forum-shopping” must be crushed with a heavy hand. In
Tamilnad
Mercantile
Bank
Shareholders
Welfare
Association V. S.C. Sekar and others 9, it has been
observed that the superior courts of this country must
discourage forum-shopping.
14.
Though the said decisions were rendered in different
context, the principle stated therein is applicable to the
case of present nature. Unscrupulous litigants are not to
be allowed even to remotely entertain the idea that they can
engage in forum-shopping, depreciable conduct in the field
of law.
15.
In the instant case, when the Additional Sessions
Judge-6 had declined to grant the bail application, the next
Additional Sessions Judge-04 should have been well
advised to place the matter before the same Judge.
However, it is the duty of the prosecution to bring it to the
notice of the concerned Judge that such an application was
rejected earlier by a different Judge and he was available.
9
(2009) 2 SCC 784
12
In the entire adjudicatory process, the whole system has to
be involved. The matter would be different if a Judge has
demitted the office or has been transferred. Similarly, in
the trial court, the matter would stand on a different
footing, if the Presiding Officer has been superannuated or
transferred.
The fundamental concept is, if the Judge is
available, the matter should be heard by him.
That will
sustain the faith of the people in the system and nobody
would pave the path of forum-shopping, which is decryable
in law.
16.
Having said what we have stated hereinabove, the
natural corollary would have been to set aside the order as
it has been passed in an illegal manner.
Ordinarily we
would have issued that direction but, a significant one, in
the present case, the allegations, as we find, are quite
different.
The FIR was instituted under Section 420/34
IPC and relates to execution of an agreement. In such a
situation, we do not intend to set aside the order and direct
the appellants to move a fresh application for bail under
Section 438 CrPC. We are only inclined to direct that the
13
bail order granted in their favour shall remain in force and
the appellants shall abide by the terms and conditions
imposed by the Court and would not deviate from any of
the conditions.
17.
Consequently, we dispose of the appeal concurring
with the reasoning given by the High Court, but in the facts
and circumstances of the case, we set aside the direction
cancelling the order of bail.
........................................J.
[DIPAK MISRA]
........................................J.
[UDAY UMESH LALIT]
NEW DELHI
DECEMBER 18, 2014.
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