MENINO LOPES Vs. STATE OF GOA

JUDGEMENT

(1.) THIS application for bail has come up before us from the Goa Bench under somewhat unusual circumstances. An earlier application for bail was filed before a learned Single Judge of that bench who rejected the same. Such rejection, by itself, may not be unusual; but the rejection was made with some extra-ordinarily unusual observations. The learned Judge, while rejecting the application of bail on 13-12-1993, observed that "the petitioner is bound to remain in custody till the final disposal of the trial". We are afraid, and this we say with respect, that the learned Judge went too far and in purporting to deprive and divest the accused-applicant of all his rights to move for bail afresh at any subsequent stage of the trial, the learned Judge acted in a manner which is difficult to appreciate. We cannot forget that the right of the accused to move for bail, whether at the pre-trial, trial or post-trial stage, concerns his right to personal liberty under Article 21 of the Constitution and now that the said Article has been endowed with majestic magnitude, amplitude and plentitude in and since the decision of the Supreme Court in Maneka Gandhi, consideration of an application for bail has become all the more a matter of most anxious advertance and any improper handling thereof as a matter of easy insouciance or otherwise would offend the provisions of Article 21. Such an observation to the effect that the accused applicant "is bound to remain in custody till the final disposal of the trial" is also squarely against the provisions of section 437 of the Code of Criminal Procedure. The provisions of sub-section (2) and of sub-section (6) of section 437 make it irresistibly clear that even though an application for bail has been rejected at an earlier stage, the accused may be released on bail at any time thereafter. Even the first proviso to sub-section (1) of section 437 shows that a person who has become very much sick or infirm at a later stage may be released on bail, notwithstanding that his earlier application has been rejected. All that a Judge can say while rejecting an application for bail is that on the materials then on record, the accused has not been able to make out a case for the grant of bail at that stage; but the Judge cannot, however grave or serious the accusation or the circumstance may be, forfeit the statutory right of the accused to move for bail at a subsequent stage to secure his release and thus to protect or enforce his right to personal liberty. We are, therefore, clearly of the view that the learned Judge who disposed of the first application was clearly wrong in making such observations.

(2.) THE present application for bail which has routed its way from Goa to Bombay has been filed before another learned Single Judge who, having obviously felt embarrassed by the aforesaid fiat of the learned Judge who dealt with the earlier application, thought that since both he and the former Judge are courts of co-equal jurisdiction, the matter should be referred for disposal by a two-Judge Bench. The learned Judge, however, while referring the matter as aforesaid, has granted the accused ad-interim bail, obviously subject to the final order by this Bench. A question has, however, arisen as to whether the second Judge who has entertained this second application for bail could do so since the earlier one was dealt with and disposed of by another Judge of that very Bench and whether the second application was to be placed before that Judge only who dealt with and disposed of the first application.

(3.) AN impression has gained ground as a result of the decisions of the Supreme Court in (Shahzad Hasan Khan v. Ishtiaq Hasan Khan) A. I. R. 1987 S. C. 1613 and in (Captain Buddhikota Subha Rao v. State of Maharashtra) A. I. R. 1989 S. C. 2292 that a subsequent application for bail should invariably be placed before the same learned Judge of the High Court, if available, who has heard and disposed of the earlier application. It is true that in Shahzad Hasan Khan (supra) it has been observed by the two-Judge Bench that