KAPUR, J. - (1.) THE learned Single Judge of this court (Hon'ble V. K. Singhal) while disposing bail application No. 5752 of 1994, Sarjeet Kumar vs. State of Rajasthan on 14. 12. 1994, directed the Registry as under : (i) That all the pending bail applications arising out of one FIR or complaint should be listed together irrespective of the fact as to whether the different co-accused are represented by one advocate or more than one: (ii) If the bail application/applications have been received subsequently to the disposal of earlier bail application of the other co-accused it should as far as possible be listed before that very Judge who has decided the bail application of other co- accused. (iii) That if one bail application has been rejected and for any reason the bail application of other co-accused is not heard and listed or decided then irrespective of- the fact as to before which bench the bail application is listed, the Registry shall put a note on the order sheet that the bail application of the co-accused has been accepted or rejected. "
(2.) WHEN the matter came up before another Single Judge, namely, Hon'ble Mr. Justice N. C. Kochhar, he was of the opinion that from the order passed by Hon'ble Justice Singhal, it appears that Rule 65 of the Rules of the High Court of Judicature for Rajasthan, 1952 (hereinafter to be referred as the Rules) was not brought to his notice, as in accordance with the said rule, it has been practice of this court that if one application moved by the same accused has been dealt with by one particular Bench, all subsequent applications of the same accused are put up before the same Bench, but if an accused person, who is co-accused in the same case but has moved the first bail application it is listed before the regular Bench. Hon'ble Justice N. C. Kochhar suggested that the matter be referred to a larger Bench, upon which the present Bench has been constituted by Hon'ble the Chief Justice. As the point involved is of general importance, a notice was issued in the cause list and several advocates have appeared to assist us. We may say that the view taken by Hon'ble Justice Singhal is not acceptable to all of them not only on a legal interpretation of Rule 65 of the Rules but also because of the technical difficulties. Rule 65 of the Rules, reads as under: "65 Subsequent application on the same subject to be heard by the same Bench. No application to the same effect or with the same object, as a previous application upon which a Bench has passed any order other then an order of reference to another Judge or Judges, shall except by way of appeal, ordinarily be heard by any other Bench. The application when presented by or on behalf of the person by whom or on whose behalf such previous application was made, shall give the necessary particulars of such previous application, the nature and the date of the order passed thereon and the name or names of the Judge or Judges by whom such order was passed. " Shri A. K. Gupta, Advocate has contended that Rule 65 refers to subsequent applications to the same effect and with the same object as a previous application, and only such an application is ordinarily to be heard by the same Bench. According to him, the second part of Rule 65 makes the provision very clear, which provides that the person making a second application, by whom or on whose behalf previous application was made, shall give particulars of the previous application, the nature and the date of the order and the name or names of the Judge or Judges by whom such order was passed. According to him only the person who has moved the second application and his previous application has been decided can furnish these particulars and not the co-accused in the case. Relying upon a Full Bench decision of this court in Ganga Sahai vs. Suraj Prasad and Ors. (1), it has been contended that a Judge of this court should not give| general directions to the Registry to follow Rules but should confine to the matter in controversy. In this case a learned Single Judge issued a direction to the Registry to follow Rules and that non compliance may lead to contempt proceedings. The matter was referred to Full Bench and referring to Rule 54 of the Rules which provides for constitution of Benches by the Chief Justice and Section 44 of the Rajasthan High Court Ordinance, 1949 which provides for distribution of business and administrative control. It was held that this power could not be exercised by a Judge and that too in the nature of a mandamus. Shri S. C. Bhandari, has referred to Rule 54 of the Rules which provides that Benches shall be constituted from time to time by the Chief Justice and Rule 73 of the Rules provides that the cause list shall be prepared by the Registry subject to such directions as the Chief Justice may give from time to time. Therefore it is the prerogative of the Hon'ble Chief Justice to constitute Benches and decide which case would be heard by a particular Bench. Shri S. K. Sharma has referred to the Rules and contended that 'ordinarily' does not mean always and therefore even the subsequent bail application of the same accused whose previous bail application has been decided by a particular Bench need not always be listed before the same Bench. The question of listing a bail application of co-accused before a Judge who decided the bail application of another co-accused does not arise.
(3.) MR. Pareek has taken the matter further and according to him even the application on the same accused whose previous application has been dismissed should not be listed before the same Bench because the second application is moved in changed circumstances and the matter is to be viewed from a different angle which can be done by any Judge. On behalf of the Government also it is submitted by Shri Gyanesh Vyas, that the powers of the Chief Justice cannot be curtailed by the direction in the judgment. According to him grant or refusal of a bail is a discretionary matter and if different Judges treat the applications of co-accused differently it does not mean that there is a difference of opinion which should be avoided. Besides the above arguments, it has been pointed out by some that because of the above directions by Hon'ble Justice Singhal there is a delay in the listing of the bail applications and sometimes the Bench may not be available and this further delays the decision. ;