BABUBHAI BACHUBHAI BHABHOR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Special Bench has been constituted by the Hon'ble the Chief Justice for considering whether the procedural directions given by the learned single Judge in the present application by order dated 29-7-2004 should be followed and all the subsequent bail applications under Sections 438 and 439 of the Code of Criminal Procedure be notified before the appropriate Bench as per the roster, except the applications filed under section 439 after the submission of charge-sheet, or whether the present practice of notifying the subsequent bail applications before the same Judge, who decided the earlier bail application of the accused, be continued to be followed. The Hon'ble the Chief Justice, "looking to the importance of the matter and also the fact that this question may pose problems in future", has directed that the said question be placed for consideration and decision before this Bench.

(2.) It is stated in the present Miscellaneous Application that the petitioner had earlier filed in this Court, Miscellaneous Criminal Application No. 8778 of 2003 before the filing of the charge-sheet, which was rejected as withdrawn on 23rd October 2003 by the learned single Judge. It also appears from the record that the petitioner had preferred an application under Section 439 of the Code (Criminal Misc. Application No. 515 of 2004) before the Sessions Court, Godhra, at Dahod, after the charge-sheet was filed on 28-12-2003, and that application was rejected by the Additional Sessions Judge, Panchmahals, Camp Dahod, on 17th May 2004 by a reasoned order. It is recorded in paragraph 5 of that order that the earlier application (Criminal Misc. Application No. 1 163 of 2003) filed by the accused under Section 439 was rejected. After the petitioner's application under Section 439 was rejected by the Additional Sessions Judge on 17th May 2004, the petitioner has filed the present application again under Section 439 before this Court for bail. This application came to be placed before the same learned single Judge, who has rejected the earlier application as withdrawn on 23-'10-2003, in view of the circular dated 8th April 2002 issued in compliance of the direction of the Hon'ble the Chief Justice that "Let the Law of the Land be followed", given in the context of the decisions of the Supreme Court in Shahzed Hasan Khan v. Ishtiaq Hasan Khan, reported in AIR 1987 SC 1613 : (1987 Cri LJ 1872) and Harjeet Singh alias Seeta v. State of Punjab, reported in AIR 2002 SC 281 : (2002 Cri LJ 571), to the effect that the subsequent ball applications were required to be listed before the same Judge who decided the earlier bail applications.

(3.) By order dated 20th March, 2002 made on Criminal Misc. Application No. 5025 of 2001 filed by a Complainant for cancellation of bail, the learned single Judge (Hon'ble Mr. Justice B. J. Shethna) and directed the office "to obtain general orders from the Hon'ble the Chief Justice that, in future, all the subsequent bail applications be placed before the same Hon'ble Judges who decided bail applications earlier", expressing the opinion that the application of the complainant was required to be placed before the learned single Judge who had granted bail to the accused. Thereupon, on the office note dated 5th April 2002, in which the decision of the Supreme Court in Shahzad Hasan's case (supra) was referred, the Hon'ble the Chief Justice made the following order : "Let the Law of Land be followed." Thereafter, the Circular came to be issued on 8th April 2002 in compliance of the directions. The said circular is re-produced hereunder for ready reference: