@JUDGMENTTAG-ORDER
S.R. Bannurmath, J.@mdashThis petition is tiled u/s 439 Cr.P.C. by the petitioner and the under duress prisoner in Crime No. 377/03 of Viveknagar Police Station, Bangalore, for the offence punishable u/s 302, 201 and 120(B) IPC.
2. When the matter was taken up for consideration, the learned High Court Government Pleader appearing for 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
3. 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
4. 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 required to be considered, I am passing the present order regarding the maintainability.
5. In the case of SHAHZAD HASAN KHAN''s Case supra, while considering the facts of the case especially regarding the propriety of the Courts and convention wherein successive bail applications are filed, the Hon''ble Supreme Court observed thus:
"Where successive bail applications of an accused were rejected by a particular Judge of the High Court, and subsequent application was also directed by another Judge to be placed before the former Judge who was afterwards available as a Vacation Judge, the latter should not have on subsequent dates of the passing of the order, record his order and entertain the bail application and pass orders releasing the accused in this regard to the prevailing practice of the Courts that subsequent bail application should be placed before the same Judge who has disposed of the earlier application".
(Underlined by me)
6. In this regard, it is further observed that, "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 in as much as an impression is not created that a litigant is shunning or selecting a Court depending on whether the Court is to his liking or not and is encouraged to file successive bail application without any new factor having cropped up. Successive bail application on the same facts and circumstances were considered by different Judges, there would be likelihood of conflicting judgments or orders which would result in the credibility of the Court and the confidence of the other side being put in issue."
(Underlined by me)
7. This principle rather convention has been re-considered once again by the Hon''ble Supreme Court in HARJEET SINGH''s case supra. However, in the latest pronouncement of the Hon''ble Supreme Court in MEHBOOB SHEIKH''s case, at para 12 it is observed thus; "observations made in HARJEETH SINGH v. STATE OF PUNJAB were relied upon for that purpose. As noted above, in the said judgment there is a long standing convention and requirement of judicial discipline which has held the field for a long period for subsequent application for grant or cancellation of bail application should be placed before the same learned Judge who had passed the earlier order, is certainly is a desirable course. But, at the same time, the party who makes a grievance that the Courts have not been followed as to indicate as to in what manner he was in prejudice by the deviation. The question of prejudice arises only when on the same set of facts a different order is passed by another learned Judge cancelling the bail or granting the bail as the case may be. But, where the cancellation is sought for on grounds different from those which existed at the time of granting bail, the conventional practice of placing the matter before the same learned Judge need not be followed as if it is a statutory requirement. That being so, the judgment in HARJEET SINGH''s case does not in any way assist the appellant. There is no such thing as the judicial precedent on facts though Counsel, and even Judges, are some times prone to argue and to act as if they were; said Bose J., about half a century back in WILLIE (WILLIAM) SLANEY v. STATE OF MADHYA PRADESH. A decision is available as a precedent only if it decides the question of law. A judgment should be understood in the light of facts of that case and no more should be read into it than what it actually says. It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court divorced from the context of the question under consideration and treat it to be a complete law decided by the Courts. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before the Court."
8. In my view these judgments of the Hon''ble Supreme Court need no explanation or even detailed consideration as to the propositions laid down by the Apex Court. In SHAHZAD HASAN KHAN''s case, wherein the successive bail applications of an accused were rejected by a particular Hon''ble Judge the accused had once again moved before another judge for the same relief. Noticing the convention existing though the Second Judge directed initially to post the matter before the same judge who had dealt with and disposed of on merits the earlier petition, later recalled his order and proceeded to hear the matter himself and disposed of the petition. This was deprecated by the Hon''ble Supreme Court observing that "the convention that subsequent bail application should be placed before the same judge was not followed by the latter judge and as such, observed regarding and following and maintaining the convention and judicial discipline by the Courts least it amounts to abuse of process of courts by a litigant by pick and choose method and creating an impression that the litigant is shunning or selecting the court depending on whether the Court is to his liking or not. The same principles were re-iterated in HARJEETH SINGH''s case. However, as already noted in MEHBOOB DAWOOD SHAIKHS case, the Hon''ble Supreme Court explained the ratio in these two cases.
9. As such, it is necessary for this Court to consider what was the earlier order passed by the Court by my predecessor Hon''ble Justice Kabbin while disposing of the Crl. Petition No. 569/2004. Before adverting to the actual order it would be necessary to mention that undisputedly the petitioner immediately after her arrest on the basis of a case registered against her, had approached this Court u/s 439 Cr.P.C. seeking her liberty by way of bail. As noted in the order dated 11th March 2004 (Hon''ble A.C. Kabbin), after hearing both the sides at length, when the order was about to be dictated, the learned Counsel for the petitioner sought permission to withdraw the petition with liberty to file fresh petition after the charge sheet is filed. It is to be noted that this prayer has been accepted by the learned Judge and he dismissed the petition as not pressed, while granting liberty sought for. There is no dispute that the present petition has been filed after investigation is completed and charge sheet has been filed by the investigating agency. Though there is no order by the learned Judge passed on the merits of the case, one way or the other, what is contended by the learned HCGP is that as is clear from the order of the learned Judge, the matter was heard at length and only when he was about to dictate the order the petitioner sought permission to withdraw the case. According to the learned HCGP the intention of the petitioner in withdrawing the case was obvious as she was sure of loosing the bail application and as such he reiterated that in the light of the pronouncement of the Hon''ble Supreme Court referred to above, propriety and convention would require that the matter has to be heard by the same Judge and not by this Court.
10. It is to be noted that in the light of pronouncement of the Apex Court in MEHBOOB DAWOOD SHAIKH''S case the contention is not correct. There is no dispute that an accused can file any number of bail applications during the pendency of the trial and even after post conviction stage. However, what is required to be seen while considering the successive bail application, is mainly whether any new facts or circumstances which were not prevalent when the first application was filed are in existence so as to practically allow the Court to review or reconsider its earlier order of rejection of bail. It is common experience that immediately after arrest of a person he approaches a Court seeking bail on various grounds. At that stage when the investigation has just begun and is incomplete, he has to prima facie show that there is no enough material to curtail his liberty. He can also file bail application after the investigation is complete and when the picture of the entire case is revealed from investigation material which is available for the Courts to look into. It is not unusual for a petitioner to withdraw his petition filed at pre-charge sheet stage and file a fresh petition after the completion of the entire investigation.
11. As already noted, the convention and the judicial discipline as pointed out by the Hon''ble Supreme Court was in respect of posting of successive bail applications before the first Judge who had decided the first application on merits so as to avoid possibility of conflicting decisions on the same point and on the same material, least it may give rise to an impression that the accused is abusing the process of Court by selecting the Court of his liking to get favourable order and that is why in SHAHZAD HASAN KHAN''s case, Hon''ble Supreme Court cautioned the Courts to maintain judicial discipline in this regard.
12. But in the present case as is apparent from a reading of the order dated 11.03.2004 in Crl.P.No. 569/04 it is clear that no orders on merit have been passed by the Hon''ble Judge (Justice A.C. Kabbin). By a bare reading of the order it may appear that having heard the matter at length (almost for two hours) and when the learned Judge was about to dictate his pronouncement as to whether bail should be granted or not, the petitioner has at that stage withdrawn the petition itself with liberty as mentioned. In my view when the first petition was filed it was only at a pre-charge sheet stage when the investigation was not complete and as such, as rightly argued by the learned Counsel for the petitioner, the possibility or even the apprehension in the mind of the petitioner that she may not succeed with the incomplete material of investigation and may succeed only if the entire investigation material is placed before the Court, after filing of the Charge sheet and hence, has sought permission of the Court to withdraw the petition. The order of the Hon''ble Justice Kabbin does not indicate as to whether he had formed his definite opinion as to whether grant bail or not. As is clear from the words used as I was about to dictate'' shows that he was just in the process transcribing his thoughts and at the threshold the petitioner has sought permission to withdraw the petition which in fact has been allowed by the very learned Judge. Hence, in my view, as no order on merits was passed by the learned Judge in the previous petition, and moreover the consideration of the present petition by this Court on totally a new and different circumstance, especially after availability of entire investigation material so far carried out as per the preliminary charge sheet, it cannot be in any way held that as there was order on merits, in the previous petition and as such judicial discipline or convention require to place the order before the same Judge. In my view, as observed by the Apex Court in MEHBOOB DAWOOD SHAIKH''S case, there is no such thing as a judicial precedent of facts. Moreover, the state has not shown as to any prejudice arises if this Court considers the matter and hence in my view, the preliminary objections raised by the respondent - State in the light of the pronouncement of the Apex Court are without merit and the same is rejected.
