@JUDGMENTTAG-ORDER
Bhaskaran Pillai Sudheendra Kumar, J.@mdashThe accused in Crime No. 1593/2015 of Kazhakkoottam Police Station registered under Section 376 IPC has filed this application seeking for the relief under Section 438 Cr.P.C. The prosecution case is that the petitioner made promise to the de facto complainant that he would marry her and thereafter, he had sexual intercourse with her. Thereafter, the petitioner refused to marry her.
2. Heard both sides and perused the case diary.
3. The learned Public Prosecutor opposed the application and submitted that this is a second application filed by the petitioner seeking for the relief under Section 438 Cr.P.C. and in the said circumstances, this application cannot be entertained, particularly, when there is no change in circumstance.
4. Per contra, the learned counsel for the petitioner submitted that there is no bar in filing the second application under Section 438 Cr.P.C. and in the said circumstances, this application is perfectly maintainable.
5. It is admitted that the earlier application filed by the petitioner seeking for the same relief was dismissed by a learned Single Judge of this Court as per order dated 23/06/2015 in Bail Application No. 3024 of 2015. It is true that the principles of res judicata are not applicable to an application under Section 438 Cr.P.C.. However, the practice of filing successive bail applications must be depreciated. A Division Bench of this Court in
"If the case put forward by the accused was considered on merits and an application for anticipatory bail was dismissed as such, it will not be proper for that accused to apply again for anticipatory bail in the absence of any change in circumstances. Finality of orders passed by the Court requires that no party should be allowed to put forward similar contention in successive applications."
6. It is clear from the above passage that if the Court considers and disposes of an application for anticipatory bail on merits, the 2nd application can be filed only when there is change in circumstances.
7. Now the question to be considered is as to whether it is proper for this Court to consider this application, particularly, when the earlier application filed by the petitioner was dismissed by another learned Single Judge of this Court.
8. In the decision in
"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 inasmuch 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 applications without any new factor having cropped up."
Their Lordships further held in Shahzad Hasan Khan (supra) thus:
"If successive bail applications on the same subject are permitted to be disposed of by different Judges, there would be conflicting orders and a litigant would be pestering every judge till he gets an order to his liking resulting in the credibility of the Court and the confidence of the other side being put in issue and there would be wastage of Courts'' time. Judicial discipline requires that such matters must be placed before the same Judge, if he is available for orders. Since Justice Kamleshwar Nath was sitting in Court on June 23, 1986 the respondent''s bail application should have been placed before him for orders."
8A. The Apex Court in
"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 in as much 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."
The Apex Court referred the decisions in Shahzad Hasan Khan (supra) and State of Maharashtra (supra) with approval in
"On a perusal of the aforesaid authorities, it is clear to us that the learned Judge, who has declined to entertain the prayer for grant of bail, if available, should hear the second bail application or the successive bail applications. It is in consonance with the principle of judicial decorum, discipline and propriety. Needless to say, unless such principle is adhered to, there is enormous possibility of forum-shopping which has no sanction in law and definitely, has no sanctity. If the same is allowed to prevail, it is likely to usher in anarchy, whim and caprice and in the ultimate eventuate shake the faith in the adjudicating system. This cannot be allowed to be encouraged."
In Jagmohan Bahl and Another (supra) the learned Addl. Sessions Judge-06 declined to grant bail in an application filed under Section 438 Cr.P.C. Thereafter, the Addl. Sessions Judge-04 allowed another application under Section 438 Cr.P.C. In the said context, the Apex Court held that the Addl. Sessions Judge-4 ought to have been well advised to place the matter before the same Judge. It was further held by the Apex Court that it was the duty of the prosecution to bring it to the notice of the Judge concerned that such an application was rejected earlier by a different Judge and he was available. Their Lordships further held in Jagmohan Bahl and Another (supra) thus:
"The matter would be different if a Judge has demitted the office or has been transferred. Similarly, in the Trial Court, the matter would stand on a different footing, if the Presiding Officer has been superannuated or transferred. The fundamental concept is, if the Judge is available, the matter should be heard by him. That will sustain the faith of the people in the system and nobody would pave the path of forum-shopping, which is decryable in law."
9. The upshot of the above discussion is that the judicial discipline requires that if successive bail applications on the same subject are filed, the matter must be placed before the same Judge who disposed of the earlier applications, if he is available for orders. Such a practice would prevent abuse of the process of Court in as much as it will prevent an impression being created that a litigant is avoiding or selecting a Court to secure an order to his liking. If such a practice is adopted that would be conducive to judicial discipline and also save the time of the Court as a Judge familiar with the facts would be able to dispose of the subsequent application. The litigant should not be permitted even to remotely entertain the idea that they can engage in forum-shopping, which is a depreciable conduct in the field of law. The Superior Courts must discourage forum-shopping.
10. In the instance case, the earlier application was dismissed by another learned Single Judge of this Court, (Abraham Mathew, J.). Therefore, as per the proposition laid down by the Apex Court, the matter must be placed before the same learned Judge, for appropriate orders. This being the position, I am not inclined to dispose of this application on merits. In the said circumstances, it is not proper to deal with the arguments advanced by the learned counsel for the petitioner and the learned Public Prosecutor on the merits of this application.
In view of the above reason, the matter may be placed before the Hon''ble the Chief Justice for appropriate orders.
