MALAVIYA, J. - (1.) THE following question has been referred by learned single Judge to be decided by this Court : "Whether a fresh argument in a second bail application for an accused should be allowed to be advanced on those very facts that were available to the accused while the first bail application was moved and rejected."
(2.) BEFORE the learned single Judge reliance was placed on the decision of a learned single Judge of this Court in the case of Gama v. State of U.P. reported in 1987 Cri LJ 242. The learned single Judge in paragraph 5 of his judgment observed as follows : "I am conscious that order on a bail application need not be detailed one but as the legal points were argued from both sides which require a bit detail discussion. After hearing the counsel for the parties at considerable length, the first point for determination is as to whether the arguments advanced by the learned counsel for the applicants about the statements of most of the prosecution witnesses being recorded under S.164 of the Code was considered in the first order disposing of the bail application or not. Suffice it to say that the right of bail is statutory right, rather it is a constitutional right. Even though it may be second or third bail application, but unless it is apparent from a reading of the first bail order that the point urged in the subsequent bail applications was also considered and rejected, it cannot be said that the point urged in the second or third bail application would be deemed to have been considered in the first bail application just by implication." (Underlined by us) After taking the view as mentioned above, the learned single Judge considered the third bail application on merit and rejected the same. The learned Additional Government Advocate as also learned counsel for the complainant contended that the subsequent bail application which was moved on the same facts and circumstances could not be entertained. Plea of bar under S.362 Criminal Procedure Code was also taken. However both these counsel conceded that if fresh grounds, facts and circumstances may develop after dismissal of the previous bail application then such fresh grounds, circumstances and facts can be considered in the successive bail application. In this respect reliance was placed on the case of State of Maharashtra v. Buddhikota Subha Rao reported in AIR 1989 SC 2292. Reliance was also placed on the case of Abu Singh v. State of U.P. , reported in 1978 Cri LJ 651 : (AIR 1978 SC 527) by all the three counsel.
(3.) WE have heard learned counsel for the parties and have gone through the cases which were cited before the learned single Judge as also before us. We think that the point is well settled by the judgment of the Supreme Court in the case of State of Maharashtra v. Buddhikota Subha Rao, (AIR 1989 SC 2292) (supra). In the aforesaid judgment of the Supreme Court while disapproving grant of bail by a learned single Judge of the High Court just after two days when a number of bail applications had been dismissed by another learned single Judge of that Court the Supreme Court also considered various other aspects relating to the question as to under what circumstances an application for bail should be considered even a previous application for bail had been rejected. It will be proper to quote relevant passages from paragraphs 6 and 7 of the said judgment : "6. ........... 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 Art. 136 of the Constitution even if it is satisfied that the jurisdiction was wrongly exercised. 7. Liberty occupies a place on pride in our socio political order. And who knew the value of liberty more than the founding fathers of our Constitution whose liberty was curtailed time and again under Draconian Laws by the colonial rulers. That is why they provided in Art. 21 of the Constitution that no person shall be deprived of his personal liberty except according the procedure established by law. It follows therefore that the personal liberty of an individual can be curbed by procedure established by law. The Code of Criminal Procedure, 1973, is one such procedural law. The law permits curtailment of liberty of anti social and anti national elements. Art.22 casts certain obligations on the authorities in the event of arrest of an individual accused of the commission of a crime against society or the Nation. In cases of under trial 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 background of the accused, the possibility of his jumping bail, the impact that his release may make on the prosecution 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 been committed. Once 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 application No. 995/89 otherwise he would have disposed it of by the very same common order. Before the ink was dry on Puranik 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 ? What is important to realise is that in Criminal Application No. 375 of 1989, the respondent had made an identical 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 substantial 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 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 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 : AIR 1987 SC 1613 : (1987 Cri LJ 1872). For the above reasons we are of the view that there was no justification for passing the impugned order in the absence of a substantial 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." ;