Gopal Vs. State of Maharashtra and Ors. - (High Court of Bombay) (23 Feb 2018)
Once application for bail is decided by a Judge, successive application for bail, if it is filed, has to be decided by the very same Judge, if the Honourable Judge is available
Present is an application under Section 439(2) of the Code of Criminal Procedure, 1973 (CrPC). The Applicant is challenging grant of bail in favour of non-applicant No. 2 vide order passed by Additional Sessions Judge. Learned Judge of the Court below ought to have dismissed the application filed on behalf of non-applicant No. 2 as not maintainable.
Time and again, the Honourable Apex Court as well as present Court has ruled that, in order to instill the confidence in the minds of litigants, once application for bail is decided by a Judge, successive application for bail, if it is filed, has to be decided by the very same Judge if the Honourable Judge is available. It was not the case of non-applicant No. 2 before the Trial Court that, the Honourable Judge, who granted the permission to withdraw the application unconditionally, was not available at Nagpur Bench.
In that view of the matter, learned Judge of the Court below, when was knowing the fact that the application for bail was considered by the High Court on its own merits and the Honourable Judge is still at Nagpur Bench, ought not to have made observations and ought to have rejected the application as not maintainable, on the settled principles of judicial discipline and propriety.
Similarly, when the first bail application of non-applicant No. 2 was withdrawn and when the Trial was not commenced, non-applicant No. 2 did not approach to the Court below but filed an application before present Court. It does not lie in the mouth of non-applicant No. 2 at this stage that, it was not a subsequent event. Non-commencement of the Trial would have been a subsequent event. Therefore, that time he could have approached to the Trial Court. However, he chose a path to present Court by filing Criminal Application.
The Honourable Apex Court in the case of State of Maharashtra vs. Avinash has considered the fact that, when the Division Bench of present Court was not with non-applicant therein and when that application under Section 482 was not pressed, it was not open for non-applicant therein to approach before the Single Judge of present Court and obtain order which was assailed before the Honourable Apex Court by the State which is set aside.
Conspectus of all the chronology events, Present Court is of the view that, when the application itself was not maintainable before the trial court, there was no occasion for learned Judge of the Court below to consider the case of non-applicant No. 2 on merits and ought not to have granted the bail in favour of non-applicant No. 2.
Bail granted in favour of non-applicant No. 2 by learned Additional Sessions Judge is hereby revoked. Non-applicant No. 2 to surrender his Bail Bonds immediately, failing which learned Additional Sessions Judge is directed to issue non-bailable warrant immediately against non-applicant No. 2. The criminal application is allowed.
Relevant : The State of Maharashtra vs. Avinash MANU/SC/1149/2017
Tags : BAIL GRANT VALIDITY