RAJENDRA MARAR Vs. STATE OF M P

JUDGEMENT

(1.) APPELLANT No. 1 Rajendra Marar has filed an application under Section 389 of Code of Criminal Procedure, 1973 (hereinafter referred to as 'code' for short) for suspension of execution of sentence and release on bail.

(2.) IT is stated that appellant is in jail since last 10 years. In Para 8 of the application it is stated that this is a repeat application for grant of bail. In the application, applicant/appellant has not stated how many applications filed by the appellant were considered by this Court, whether those applications were considered on merits or not, whether those applications were pressed or not, and what transpired to those application does not reflect from the applications. This Special Bench is sitting of hearing repeat bail applications as per the pronouncement of Full Bench of this Court in Gopal and Ors. v. State of M. P. reported in 2004 (4) M. P. H. T. 195, wherein the Full Bench considering a right of an accused/appellant to make successive applications for suspension of execution of sentence and for grant of bail held thus: In the present case, as mentioned above the two Judges who dealt with the bail application for the first time have retired. One of the Hon'ble Judges comprising the Bench which decided the three successive applications is at present available and both the Judges of the Division Bench who decided the last two applications are also available. From the judicial precedents referred above the raison detre for the rule that the repeat bail application should be placed before the Judge or the Judges who have decided the earlier application are (a) prevention of abuse of the process of the Court, (b) avoidance of conflicting decisions, (c) judicial discipline, and (d) a Judge or the Judges familiar with the facts would be able to dispose of the subsequent application with despatch. These are the underlying objects or principles on which the convention is founded. In the year 1987 it was described to be 'long standing convention' and since then seventeen more years have passed and in view of the reiteration of the same rule in subsequent authoritative precedents it can be held that it has hardened into a rule of law. It has been pointed out by Shri S. C. Datt, Senior Advocate that strict adherence to the aforesaid rule is leading to inconvenience and dislocation of work and, therefore, it is suggested by him that it should be modified to the extent that if one of the Judges constituting the earlier Division Bench which dealt with the bail application of the same person is not available then the application should be listed before the regular Bench as per current roster. On the other hand it is argued by the learned Additional Advocate General that the acceptance of this argument would amount to deviation from the well settled convention approved by various judicial decisions referred above. In our considered opinion that contention of the Additional Advocate General should be accepted keeping in view the principle enunciated in the above cases. If the Judges of the first Division Bench are not available and Anr. Division Bench deals with the application and rejects it this latter Division Bench for all practical purposes becomes the Division Bench before which the matter was placed earlier and any subsequent bail application should be listed before the same Division Bench and not before the Division Bench comprising of different judges under the current roster. As a logical extension of this rule or premise, if one of the Judges of the Division Bench rejecting the earlier application is available then for consideration of the repeat bail application he should be a member of the Division Bench to be constituted to deal with such application and it should not be listed before a Division Bench as per rosier comprising of different Judges. A Judge of the Division Bench who has heard the same matter earlier would be "familiar with the facts and would be able to dispose of the second application with despatch" (within the meaning of the words used in Buddhikota's case referred above) while sitting with the other Judge. Recently in Kalyan Chandra Sarkar v. Rajesh Ranjan 2004 AIR SCW 1581, the Supreme Court has held that though an accused has a right to make successive applications for grant of bail the Court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the Court also has a duty to record what are the fresh grounds which persuade it to take a view different from the one taken in the earlier applications. In view of this dictum of the Supreme Court it is all the more necessary that the subsequent bail application should be listed before the Judge or the Judges who rejected the earlier application. If a Judge who has been a member of the Division Bench which rejected the earlier bail application is also a member of the subsequent Division Bench then the latter Bench would be in a better position to consider the reasons and grounds on which the earlier bail applications were rejected and also to record the fresh grounds which persuade it to take a view different from the one taken in the earlier applications. We accordingly answer to the questions referred to us as under:

(3.) FROM the perusal of record it appears that appellant Rajendra Marar has filed various applications in the past, but this fact does not find place in the application itself. To ascertain what transpired to the previous applications, whether they were considered on merits or not, or simply were got dismissed as not pressed or were dismissed because of non- appearance of the Counsel, everything is to be seen while deciding successive applications, in the same case on behalf of same appellant. Apart from this if the appellant had filed Special Leave Petition before the Supreme Court against the dismissal of any previous application, this fact also deserves to be disclosed in the application itself. The Apex Court in Kalyan Chandra Sarkar v. Rajendra Ranjan alias Pappu Yadav and Anr. 2004 AIR SCW 1581 considering the law held thus: Before concluding we must note though an accused has a right to make successive applications for grant of bail the Court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the Court also has a duty to record what are the fresh grounds which persuade it to take a view different from the one taken in the earlier applications. In the impugned order we do not see any such fresh ground recorded by the High Court while granting bail. It also failed to take into consideration that at least on four occasions order refusing bail has been affirmed by this Court and subsequently when the High Court did grant bail, this Court by its order dated 26th July, 2000 cancelled the said bail by a reasoned order. From the impugned order, we do not notice any indication of the fact that the High Court took note of the grounds which persuaded this Court to cancel the bail. Such approach of the High Court, in our opinion, is violative of the principle of binding nature of judgments of Superior Court rendered in a lis between the same parties, and in effect tends to ignore and thereby render ineffective the principles enunciated therein which have a binding character.