SUPREME COURT OF INDIA
M.P. Thakkar and K.N. Singh, JJ.
Shahzad Hasan Khan- Appellant
Versus
Ishtiaq Hasan Khan and another
-Respondents.
Criminal Appeal No. 464 of 1986
Decided on 28-4-1987

IMPORTANT POINTS
1. There is a judicial convention that successive bail application on the same subject should be placed before the same judge who may have passed earlier orders and if he is available for orders.
2. One of the salutary principles in granting bail is that if the operations of tampering of evidence are not found to be concocted it would not be proper exercise of jurisdiction in enlarging the accused on bail.

Headnote:(i) Constitution of India, 1950 - Article 136- Indian Penal Code, 1860-Section 302- Respondent No.1 facing trial for the offence under-Occurrence took place in broad day light, in a busy market-A number of eye-witnesses to support the case against respondent who was named as an assailant in FIR-Respondent could not be traced for more than a month immediately after the occurrence-Attempts made on behalf of respondent to tamper with evidence-Whether the respondent was entitled to bail?(No) (Para 8)

       (ii) Constitution of India- Article 136-Indian Penal Code, 1860- Section 302- Respondent No. 1 facing trial for the offence under _ Three successive bail applications rejected and finally disposed of any Justice Kamleshwar nath- Respondent No., 1 released on bail by an order passed by Justice bajpai when Justice kamleshwar nath was available as vacation Judge-Whether Justice Bajpai was enatitled to consider this bail application considering the judicial discipline and the prevailing practice in High Court? (No)

       Held: The convention that subsequent bail application should be placed before the same Judge who may have passed earlier orders has its roots in principle. It prevents abuse of process of court in as much as an impression is not created that a litigant is shunning or selecting a court depending on whether the court is to his liking or not, and is encouraged to file successive applications without any new factor having cropped up. If successive bail applications on the same subject are permitted to be disposed of by different judges there would be conflicting orders and a litigant would be pestering every judge till he gets an order to his liking resulting in the creditability of the court and the confidence of the other side being put in issue and the would be wastage of court’s time Judicial discipline requires that such matter must be placed before the same judge, if he is available for orders. Since Justice kamleshwar Nath was sitting in Court on June 23, 1986 the respondent’s bail application should have been placed before him for orders. Justice D.S. Bajpai should have respected his own order dated June 3, 1986 and that order ought not to have been recalled, without the confidence of the parties in the judicial process being rudely shaken. (Para 5)

       (iii) Indian Penal Code, 1860 - Section 302 - Murder case - Successive bail applications-Rejected — Observations made by High Court for expeditious trial-Accused obtaining adjournments-Trial could not be competence or completed within three months as desired by High Court- Bail application before High Court-Complainant seeking three days’ time to file counter affidavit giving details of proceedings pending before trial court- Rejected- Bail granted on the ground that trial was delayed-Allegations of tampering of evidence on behalf of accused persons- Whether the order grating bail is sustainable?(No)

       Held: Had the learned judge granted time to the complainant for filing counter affidavit, correct facts would have been placed before the Court and it could have been pointed out that apart from the inherent danger of tampering with or intimidating witnesses and aborting case. There was also the danger to the life of the main witnesses or to the life of the accused being endangered as experience of life has shown to the members of the profession and the judiciary, and in that event, the learned Judge would have been in a better position to ascertain facts to act judiciously. No doubt liberty of a citizen must be zealously safeguarded by court, nonetheless when a person is accused of a serious offence like murder and his successive bail applications are rejected on merit there being prima facie material, the prosecution is entitled to place correct facts before the courts. Liberty is to be secured through process of law, which is administered keeping in mind the interest of the accused, the near and dear of the victim who lost his live and who feel helpless and believe that there is no justice in the world as also the collective interest of the community so that parties do not lose faith in the institution and indulge in private retribution. Learned Judge was unduly influenced by the concept of liberty, disregarding the facts of the case. (Para6)

       Result-

       Appeal allowed. Directions issued that respondent No.1 be taken into custody again.