1994 Supreme(Bom) 381

IN THE HIGH COURT OF BOMBAY
A.M. Bhattacharjee, C.J. V.P. Tipnis, J.
Menino Lopes.... Applicant.
Versus
State of Goa.... Respondent.
Criminal Miscellaneous Application No. 91 of 1994, decided on 29-7-1994.
Advocates appeared :
M.R. Bolke with J.P. DSouza, for the applicant.
G.U. Bhobe, P.P., for the respondent.

Headnote:(i) Criminal Procedure Code, 1973 - Section 437 - Application for bail - Rejected while making observation that 'petitioner is bound to remain in custody till final disposal of trial' - Judge who disposed of this application was wrong in making such observations - A Judge cannot forfeit statutory right of accused to move for bail at a subsequent stage to secure his release. (Constitution of India - Art. 21).

       Held, that the right of the accused to move for bail, whether at the pro 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 advertence 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 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, not withstanding 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.

       (para 1)

       (ii) Criminal Procedure Code, 1973 - Section 437 - Application for bail - Rejected - Second bail application filed before another Judge - Whether maintainable? - (Yes)

       Held: We, do not think that it was not within the competence of the second learned Judge to hear and dispose of the present application for bail, even though the earlier application was heard and disposed of by another Judge. This position is indisputable and has not been disputed, even remotely, by the Supreme Court in any of the decisions mentioned hereinabove. All that the Supreme Court appears to have held in the facts and context of those cases is that whenever and wherever possible; an application for bail should be heard by the same learned Judge who has heard and disposed of the earlier applications, provided, however, as repeatedly pointed out by the Supreme Court, the same learned Judge "is available". (Para 6)

       We, must not read the Supreme Court decision to have laid down any rigid or strait-jacket formula that an application for bail must invariably be placed before the Judge who has disposed of an earlier application, but only to have advised us to see that the later application is, if otherwise reasonably possible, be placed before the same learned Judge. But failure to do so, as already, indicated above, cannot attach any illegality or infirmity to the order passed by the later Judge who is now having the requisite determination. Therefore, while we appreciate the-gesture on the part of the second learned-Judge in this case to have the matter referred to this Bench, we have, for the reasons indicated above, no doubt that the said learned Judge could have also heard and disposed of the matter in his own way. (para 6)

       (iii) Criminal Procedure Code, 1973 - Section 437 - Application for bail - State opposed application on first date - On second date, however, he submitted that he has no objection to grant of bail - While Court may take note of any such concession made by prosecution, it cannot govern itself solely thereby but must come to its own decision on merits in each case. (Para 9)

       Result: Application allowed. Bail granted.

       (i) Criminal Procedure Code, 1973 - Section 437 - Bail Application - Rejected with observation that petitioner is bound to remain in custody till final disposal of trial'. Order not - sustainable - Such an observation is against - provisions of Sec. 437 and Art. 21 Constitution of India.

       Held, 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 plentiude 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 subsection (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. (Para l)

       (ii) Criminal Procedure Code, 1973 - Section 437 - Bail Application - Rejected – Second bail application - Whether to be placed before that Judge only who dealt with and disposed of first application? -(No).

       Held: We do not think that it was not within the competence of the second learned Judge to hear and dispose of the present application for bail, even though the earlier application was heard and disposed of by another Judge. This position is indisputable and has not been disputed, even remotely, by the Supreme Court in any of the decisions mentioned hereinabove. All that the Supreme Court appears to have held in the facts and context of those cases is that whenever and wherever possible, an application for bail should be heard by the same learned Judge who has heard and disposed of the earlier applications, provided, however, as repeatedly pointed out by the Supreme Court, the same learned Judge is available. We have our own doubts that whether in a busy High Court like ours, a learned Judge, who has ceased to have the requisite determination allotted to him earlier and is thereafter exercising a new determination, can always be made available without some amount of delay, particularly when this High Court is functioning with three more permanent Benches in Nagpur, Aurangabad and Goa. It is obvious that any such delay in disposing of bail matters must be avoided. If a learned Judge has ceased to have the earlier determination in exercise whereof he has disposed of an application for bail and is now exercising a new determination which does not include matters relating to bail, no new application for bail can obviously be placed or moved before him, unless the Judge having the present determination refers the application back to the Chief Justice for special assignment thereof to the Judge who had the earlier determination. This also may, in a busy Court like ours, involve some amount of delay which may not always be appreciated in an application for bail where the, accused is obviously endeavoring to protect or enforce his precise right to personal liberty. We, therefore, must not read the Supreme Court decision to have laid down any rigid or strait-jacket formula that an application for bail must invariably be placed before the Judge who has disposed of an earlier application, but only to have advised us to see that the latter applications is, if otherwise reasonable possible, be placed before the same learned Judge. But failure to do so, as already indicated above, cannot attach any illegality or infirmity to the order passed by tee later Judge who is now having the requisite determination. Therefore, while we appreciate the gesture on the part of the second learned Judge in this case to have the matter referred to this Bench, we have, for the reasons indicated above, no doubt that the said learned Judge could have also heard and disposed of the matter in his own way. (Para 5)

       (iii) Criminal Procedure Code, 1973-Section 437 - Bail Application. No chance of accused fleeing from his place of work and residence - Co-accused released. Allegation against one accused, who has atready been released on bail, is probably graver than that of applicant -Accused deserves granting of bail. (Paras 6 to 8)

       Result: Application allowed.