Calling it a "disturbing trend", the Delhi High Court has expressed concern over the practice of Trial Courts in entertaining the bail applications despite the pendency of the same before the higher courts.
Justice Anoop Kumar Mendiratta also noted that at times, the orders are mechanically passed without any substantial change of circumstances and in complete disregard to the observations or the factors which weighed with the higher court in declining the bail.
The Court also added that the consideration of bail application by subordinate court despite pendency of an application with the higher court or without consideration of grounds of rejection of earlier application by higher courts, may be an utter disregard to judicial discipline.
Accordingly, the Court directed that the trial courts shall make an endeavor to ascertain from the petitioner or accused concerned regarding the pendency of any other bail application before the higher forum or rejection of any earlier bail application, before considering the bail application in accordance with law.
"This would ensure that the doctrine of judicial discipline and propriety is upheld and would avoid any bench hunting," the Court said.
The Court further opined that the subordinate courts are bound by the judicial discipline and propriety, having regard to the hierarchal system of the courts.
"Further, the concerned courts need to give due consideration, if the bail application preferred by accused already stands rejected by the higher courts on merits. Though at the same time, it may be observed that an accused whose bail application has been rejected, is not precluded from filing subsequent application for grant of bail in case of change in circumstance or factual position," the Court said.
The Court added that in case the subsequent application is allowed, the Court has a duty to record the fresh grounds which persuade it to take a view different from the earlier applications preferred on behalf of the accused.
"As such, judicial wisdom forecasts a duty on concerned court to make enquiry as to pending bail application, if any, with courts in hierarchy or rejection of any bail application by higher court, to avoid any miscarriage of justice," the Court said.
The Court ordered "The Registrar General of this Court is directed to ensure that a copy of this order is circulated to all the Judicial Officers in the subordinate courts in Delhi, for information."
The development ensued in a plea filed by one Shiv Lingam seeking quashing of the order passed by Additional Sessions Judge whereby the bail granted to him by ACMM in April this year was cancelled under sec. 439(2) Cr.P.C.
The case of the prosecution was that the petitioner committed trespass in the house of the complainant during her absence while they had gone to Gujarat due to Covid-19 in June, 2020.
Further, it was alleged that the petitioner claimed possession on the strength of false and fabricated documents. The petitioner was arrested in September last year after ascertaining the falsification of the said documents and was charge-sheeted accordingly.
It was stated that the petitioner was granted bail by ACMM despite the fact that a bail application was already pending before the Sessions Court. Further, the bail application was disposed of as infructuous by Sessions Court in view of grant of bail by ACMM.
The complainant challenged the order passed by the ACMM granting bail to the petitioner. Vide the impugned order, the said application was allowed by Additional Sessions Judge and the bail granted to the petitioner vide order was cancelled with directions to surrender before the ACMM.
Justice Mendiratta was of the view that the ACMM in the present case was expected to give due consideration to the grounds which weighed with the Court in rejecting the earlier bail applications of the petitioner and should not have considered the application in a routine manner during pendency of 'application for bail' before the Sessions Court, as no substantial change of circumstances were revealed.
"It may also be observed that if the record of earlier orders rejecting the bail application is concealed by the petitioner, then inevitably the Judicial Officer concerned may remain under an impression that no bail application had been considered earlier by any court. In the aforesaid eventuality, since the fraud vitiates all proceedings, the consideration of the bail application, would be no exception," the Court added.
During the course of arguments, the counsel appearing for the petitioner requested for permission to withdraw the petition and undertook to surrender before the Trial Court in view of prima facie observations of the court regarding the impropriety in which the bail application was allowed.
"In view of the prayer made by the learned counsel for the petitioner, present petition is permitted to be withdrawn without any observations on the merits of the case," the Court said.
The plea was accordingly disposed of.
Case Title: SHIV LINGAM v. THE STATE AND ANR.
Citation: 2022 LiveLaw (Del) 611