- (1.) THIS petition is filed under S.439, CrPC by the petitioner and the under duress prisoner in Crime No. 377/03 of Viveknagar Police Station, Bangalore, for the offence punishable under S.302, S.201 and S.120(B), IPC.
(2.) WHEN the matter was taken up for consideration, the learned High Court Government Pleader appearing for the respondent - State has raised his preliminary objections as to the propriety of this Court hearing the present petition. Relying upon the decisions of the Hon'ble Supreme Court in the case of Shahzad Hasan Khan v. Ishtiaq Hasan Khan reported in AIR 1987 SC 1613 : 1987 CriLJ 1872 and later judgment in the case of Harjeet Singh alias Seeta v. State of Punjab reported in 2002 SCC (Crl) 225 : 2002 CriLJ 571 : AIR 2002 SC 281, it is contended that as the first bail application of the petitioner in Criminal Petition No. 569/04 was heard at length by my brother Judge Hon'ble Justice Kabbin and when he was about to dictate the orders, the petitioner has sought permission to withdraw the petition with liberty to file fresh petition after the charge - sheet is filed. It is submitted that as the learned Judge had almost made up his mind and was about to dictate the order in the first bail application as is laid down in Shahzad Hasan's case (supra), the convention of the Courts that subsequent bail application should be placed before the same Judge who could have passed the earlier order and the judicial discipline has to be maintained to prevent the abuse of process of the court to avoid an impression created in the mind of litigant public as to the theory of "pick and chose of the courts". Hence, it is submitted that the same convention has to be followed and the present second petition is also required to be heard by the same Hon'ble Judge. On the other hand, Sri. C. V. Nagesh, learned senior counsel appearing for the petitioner vehemently contended that the ratio laid down in the aforesaid decision is not at all attracted to the present case. He submitted that as there was no decision on merits in the earlier case, and in view of the latest pronouncement of the Apex Court in the case of Mehbood Dawood Shaikh v. State of Maharashtra reported in 2004 (2) SCC 362 : 2004 CriLJ 1359 : 2004 AIR SCW 527, wherein the earlier decision including the decision in Harjeet Singh's case, 2002 CriLJ 571 : AIR 2002 SC 281 has been reconsidered and explained. As such, there is no inhibition for this Court to hear the matter.
(3.) SINCE the question of maintainability rather propriety of this court in considering the present petition is raised, I have heard the arguments on both the sides at length in the light of the pronouncements of the Apex Court. The question of general importance is require to be considered, I am passing the present order regarding the maintainability.;