2 Sep 2020 7:01 AM GMT
The Himachal Pradesh High Court on Monday (31st August) expressed its concern over the case of the institution of two bail petitions arising out of the same FIR by the same petitioner.The bench of Justice Jyotsna Rewal Dua also directed the Registrar General of the court to try and evolve software wherein filing of more than one bail petition in this Court by the same petitioner during...
The Himachal Pradesh High Court on Monday (31st August) expressed its concern over the case of the institution of two bail petitions arising out of the same FIR by the same petitioner.
The bench of Justice Jyotsna Rewal Dua also directed the Registrar General of the court to try and evolve software wherein filing of more than one bail petition in this Court by the same petitioner during the pendency of previous bail petition, arising out of same FIR can be detected and consequent steps can be taken at the threshold.
In this matter, 2 separate bail petitions under Section 439 of the Code of Criminal Procedure were preferred by the same petitioner, i.e. Sunil Kumar, through two different lawyers.
In both these petitions, prayer was for the release of petitioner on bail in FIR No.164 of 2019, registered on 01.11.2019 under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act') at Police Station Dharamshala, District Kangra, Himachal Pradesh.
The first bail Petition, being CrMP(M) No.1303 of 2020, was instituted through an e-mail on 04.08.2020 on a Power of Attorney signed by the petitioner with the endorsement of the Assistant Superintendent Jail, Lala Lajpat Rai District & Open Air Correctional Home, Dharamshala, Himachal Pradesh, dated 14.07.2020.
The second bail petition, being Cr.MP(M) No.1321/2020, was also instituted through an e-mail on 06.08.2020. It is also on the power of attorney signed by the petitioner with the endorsement of the same Assistant Superintendent Jail, Lala Lajpat Rai District & Open Air Correctional Home, Dharamshala, Himachal Pradesh, dated 30.07.2020.
Now both these petitions, i.e. Cr.MP(M) Nos.1303 of 2020 and 1321 of 2020, were listed on 06.8.2020 and 07.8.2020, respectively and incidentally before the same bench, when the respondent-State was directed to file status reports in both these matters before the next date of hearing, given as 19.08.2020 and 20.08.2020, respectively.
On 19.08.2020, when the first bail petition (Cr.MP(M) No.1303/2020) was listed, it was pointed out by the Court Reader that Cr.MP(M) No.1321 of 2020, arising out of the same FIR, is listed on 20.08.2020.
Resultantly, both the above petitions were ordered to be listed together on 20.08.2020. On 21.08.2020, both the learned counsel representing the same petitioner in separate bail petitions professed to have separate and positive instructions for proceeding ahead with their separate bail petitions.
In view of the emergence of serious related issues, Mr Virender Singh Chauhan, learned Senior Counsel graciously accepted the request to assist as an amicus curiae in the matter.
During the hearing of the case learned counsel for the petitioner in Cr.MP(M) No.1303 of 2020 stated that the brief was handed over to him by a local lawyer, whereas learned counsel for the petitioner in Cr.MP(M) No.1321 of 2020 submitted that he got the brief from the parents/ relatives of the bail petitioner.
This Court expressed serious concern over the misconduct of the bail petitioner in simultaneously filing two parallel bail petitions before this Court in the same case without divulging the complete details.
The bench stated,
"The conduct of the petitioner is appalling. Filing of two petitions by the same petitioner arising out of same FIR amounts to an abuse of judicial process and is strongly condemned. The Court expresses its disapproval over the manner in which simultaneously two bail petitions have been filed in this Court and records its indignation."
The Court was inclined to take action against such conduct. However, on the fervent request made by learned counsel for the petitioner(s) and supported by the learned Amicus Curiae, Cr.MP(M) No.1321 of 2020 was ordered to be closed as withdrawn with a strong warning to the petitioner/his relatives not to indulge in such activities in future.
However, before proceeding with the merits of the case in Cr.MP(M) No.1303 of 2020, in order to ensure that such incidents do not happen in future, the court gave some directions.
First Issue - In the present matter, separate status reports in both the bail petitions were filed by the respondent-State. These status reports were verbatim the same. There was no reference in either of the status reports about the same petitioner having filed another bail petition in this Court under the same FIR.
In this context, the court said,
"These are serious lapses. It has also come to the notice of this Court that invariably, the status reports filed by the respondent-State do not reflect any history of previous bail petitions filed by the concerned petitioner."
Direction given by the Court - Such record should also be maintained by the investigating agency. It is necessary that the status report filed by the State should reflect details of all previous bail petitions filed by the petitioner irrespective of the fact whether the same were eventually withdrawn by him or not.
Further, the court stated that the status reports should also clearly indicate criminal history of the accused persons involved in the FIR, as available with the investigating agency.
Director-General of Police, Himachal Pradesh, was therefore directed through the learned Additional Advocate General to forthwith issue necessary orders in this regard to all concerned and ensure compliance.
Second Issue - In bail matters, lawyers are being engaged, interalia, on the basis of Power of Attorney of the accused (in custody) endorsed and attested by the Jail Superintendents.
In the present case also, both the bail petitions were filed on the strength of petitioner's Power of Attorneys attested and endorsed on different dates by the same concerned Jail Superintendent.
Learned Additional Advocate General submitted that no record had been maintained by the concerned Jail Superintendent with respect to the execution of the power of attorneys by the persons in custody.
"Maintenance of such record is essential not only to avoid situations like the present one, but also to prevent mischief which may be caused to the accused in custody."
Direction given by the Court - It was directed that henceforth, all the Jail Superintendents will maintain proper records with respect to the identification of the person at whose instance the power of attorney of the person in custody was being attested and endorsed by the Jail Superintendents.
The record amongst others should contain details of name/address/Aadhar Card detail/telephone numbers/ relation with accused/purpose for obtaining power of attorney etc.
The Director-General of Prisons & Correctional Services, Himachal Pradesh, through the learned Additional Advocate General was directed to forthwith issue necessary orders in this regard to all the Jail Superintendents and ensure compliance.
Third Issue - There was no averment in any of the bail petitions that at whose instance and instructions, the bail petitions were filed. There was no affidavit along with the bail petitions.
In the second bail petition, bearing Cr.MP(M) No.1321 of 2020, there was a specific averment of the petitioner's having not filed any similar bail petition in this Court on the same cause of action.
The fact remained that a petition was filed in the Court at the applicant's instance just two days prior to the filing of this petition arising out of the same FIR, which was pending for adjudication.
"The situations similar to the one arising in the instant case perhaps could have been avoided had it been mandatory to plead in the petition that on whose instructions, the bail petition was being moved."
Learned Amicus Curiae suggested that the persons who are authorised by the accused in custody for moving the bail application should be directed to file their personal affidavit stating therein that they have been authorised by the bail accused to move the bail application.
Learned Amicus Curiae brought to the notice Chapter-13 of the Draft Rules and Order of H.P. High Court, Volume-III, pertaining to 'Bail and Re-cognizance', clause 2(i). However, the said clause is presently in the draft state and has not been finalized.
Direction given by the Court - Taking cognizance of the situation, which arose in the instant case and to avoid its repetition in future, the Registry of the Court through the learned Registrar General was directed to try and evolve a software wherein filing of more than one bail petition in this Court by the same petitioner during the pendency of the previous bail petition, arising out of same FIR can be detected and consequent steps can be taken at the threshold.
Case Title: Sunil Kumar v. The State of Himachal Pradesh
Case No.: Cr.MP(M) No.1303 & 1321 of 2020
Quorum: Justice Jyotsna Rewal Dua
Appearance: Advocate Vijender Katoch and Gobind Korla (for the Petitioner); Anil Jaswal, Additional Advocate General Azhar-ul-Amin, Assistant Advocate General Manoj Bagga (for the respondent-state); Senior Advocate Virender Singh Chauhan (as Amicus Curiae).
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