Jharkhand High Court
Mohammad Tosik @ Raja Babu vs The State Of Jharkhand on 5 February, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
A.B.A. No. 51 of 2021
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Mohammad Tosik @ Raja Babu ... ... ... Petitioner
- Versus -
The State of Jharkhand ... ... ... Opposite Party
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CORAM: - HON'BLE MR. JUSTICE DR. S. N. PATHAK
(Through: Video Conferencing)
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For Petitioners : Ms. Pinki Kumari, Advocate
For Opp. Party : Mr. V.S. Sahay, APP.
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02/05.02.2021 Heard the parties.
Petitioner apprehends his arrest in connection with Petarwar P.S.
Case No. 92 of 2020 (G.R. No. 677 of 2020) for the offence registered under
Sections 147/ 149/ 337/ 352/ 353/ 504/ 188/ 269 of the IPC, pending in the
Court of Sub-divisional Judicial Magistrate, Bermo at Tenughat.
Earlier the petitioner had moved this Court for grant of
anticipatory bail in A.B.A. No. 4043 of 2020, which has been rejected vide
order passed on 17.09.2020.
The sole contention of learned counsel for the petitioner is that
after order dated 17.09.2020, similarly situated co-accused has been granted
anticipatory bail in connection with same P.S. Case by a Co-ordinate Bench
of this Court vide order dated 30.09.2020, passed in A.B.A. No. 4440 of
2020 and as such, petitioner deserves to be given the benefit of anticipatory
bail.
Learned APP vehemently opposes the contention of learned
counsel for the petitioner and submits that earlier the prayer of the petitioner
for enlarging him on anticipatory bail was rejected by this Court and as
such, he ought to have moved for regular bail by surrendering himself
before the Court below as the second Anticipatory Bail Application after
rejection of earlier application seeking anticipatory bail in connection with
the same P.S. Case is not maintainable in the eyes of law.
After hearing the parties and on perusal of the records, it appears
that the main issue to be decided is as to whether once this Court had
dismissed the anticipatory bail application, can the accused file second
application under Section 438 Cr.P.C.
The similar issue fell for consideration before the Division Bench
of Calcutta High Court in a case reported in (1988) 18 Reports 254 (DB)
(Calcutta) wherein the Hon'ble Court has held that:
"As the accusation in a case remains the same and as an accused
is given right to apply for anticipatory bail when he apprehends
arrest on an accusation, he cannot apply more than once in
respect of same accusation. Thus, when an accused was refused
anticipatory bail by Division Bench of High Court he was not
entitled to file another application for same relief before the High
Court."
The Hon'ble Andhra Pradesh High Court also in a case reported in
(1991) 2 APLJ 366, held that a second application for grant of anticipatory
bail either before the Court of Sessions or before the High Court is not
maintainable under Section 438 Cr.P.C.
Further, the Hon'ble Rajasthan High Court dealing with the
similar issue, in case of Ram Gopal Vs. the State Rajasthan (1983 RLW
270) has clearly observed that:
"16........ (i) After rejection of bail application under Section
438, Cr.P.C. by the High Court second anticipatory bail
application is not maintainable.
(ii) An order refusing an application for bail
under Section 439, Cr.P.C. does not necessarily preclude
another on a latter occasion giving more materials, further
developments and different considerations."
Further in case of Suresh Chand and Ors. Vs. State of
Rajasthan, reported in 2001 (4) WLC 684, the Hon'ble Rajasthan High
Court has observed that, after rejection of bail application made by the
accused petitioners before the High Court under Section 438, Cr.P.C, second
application for the same relief was not maintainable even before the High
Court and the Sessions Judge had absolutely no jurisdiction to entertain the
second anticipatory bail application.
Similar issue fell for consideration before the Hon'ble Apex Court
in case of Jagmohan Bahl & Anr. Vs. State (NCT of Delhi) & Anr.,
reported in (2014) 16 SCC 501 wherein the Hon'ble Court in para-13, 15
and 16 has held as under:
"13. On a perusal of the aforesaid authorities, it is clear
to us that the learned Judge, who has declined to entertain
the prayer for grant of bail, if available, should hear the
second bail application or the successive bail applications.
It is in consonance with the principle of judicial decorum,
discipline and propriety. Needless to say, unless such
principle is adhered to, there is enormous possibility of
forum-shopping which has no sanction in law and definitely,
has no sanctity. If the same is allowed to prevail, it is likely
to usher in anarchy, whim and caprice and in the ultimate
eventuate shake the faith in the adjudicating system. This
cannot be allowed to be encouraged. In this regard we may
refer to the pronouncement in Chetak Construction Ltd. v.
Om Prakash9, wherein this Court has observed that a
litigant cannot be permitted "choice" of the "forum" and
every attempt at "forum-shopping" must be crushed with a
heavy hand. In Tamilnad Mercantile Bank Shareholders
Welfare Assn. (2) v. S.C. Sekar10, it has been observed that
the superior courts of this country must discourage forum-
shopping.
15. In the instant case, when the Sixth Additional
Sessions Judge had declined to grant the bail application,
the next Fourth Additional Sessions Judge should have been
well advised to place the matter before the same Judge.
However, it is the duty of the prosecution to bring it to the
notice of the Judge concerned that such an application was
rejected earlier by a different Judge and he was available.
In the entire adjudicatory process, the whole system has to
be involved. The matter would be different if a Judge has
demitted the office or has been transferred. Similarly, in the
trial court, the matter would stand on a different footing, if
the presiding officer has been superannuated or transferred.
The fundamental concept is, if the Judge is available, the
matter should be heard by him. That will sustain the faith of
the people in the system and nobody would pave the path of
forum-shopping, which is decryable in law.
16. Having said what we have stated hereinabove, the
natural corollary would have been to set aside the order as
it has been passed in an illegal manner. Ordinarily we
would have issued that direction but, a significant one, in
the present case, the allegations, as we find, are quite
different. The FIR was instituted under Sections 420/34 IPC
and relates to execution of an agreement. In such a
situation, we do not intend to set aside the order and direct
the appellants to move a fresh application for bail under
Section 438 CrPC. We are only inclined to direct that the
bail order granted in their favour shall remain in force and
the appellants shall abide by the terms and conditions
imposed by the Court and would not deviate from any of the
conditions."
Further, the Hon'ble Apex Court in case of Rani Dudeja v. State
of Haryana, reported in (2017) 13 SCC 555 has held that:
"3. We are afraid, the stand taken by the High Court
cannot be appreciated. The petition was for anticipatory
bail and the one which had been filed earlier might have
been withdrawn in a given situation, without inviting the
Court to consider the same on merits. On change of
circumstances, when another application under Section 438
CrPC was filed, the High Court should have considered the
same on merits. The principle of res judicata could not have
operated in an application for bail.
4. The order dated 7-3-20171 is set aside. Crl. Misc.
No. M-7712 of 2017(O&M) will stand revived before the
High Court. The matter be posted before the appropriate
court on 3-4-2017 for consideration, in accordance with
law."
The Hon'ble Apex Court in its recent judgment dated 28.01.2021,
passed in case of G.R. Ananda Babu Vs. State of Tamil Nadu & Anr.
[SLP (Crl.) No. 213 of 2021] has observed that:
"As a matter of fact, successive anticipatory bail
applications ought not to be entertained and more so, when
the case diary and the status report, clearly indicated that
the accused (respondent No. 2) is absconding and not
cooperating with the investigation. The specious reason of
change in circumstances cannot be invoked for successive
anticipatory bail applications, once it is rejected by a
speaking order and that too by the same Judge."
Upon going through the aforesaid judgments it appears that the
Court has to decide the matter strictly in accordance with law. The same cannot
be overshadowed by the equity. In the facts and circumstances of the case, no
liberal view can be taken and it is obligatory on the part of the Court to decide
the matter in accordance with law. If the law is in favour of the appellant, it was
obliged to make an order in favour of the appellant. Consideration of equity
cannot prevail and no order can be passed contrary to the law.
I do not find any infirmity in the order refusing anticipatory bail
under Section 438 Cr.P.C. and also in view of the fact that earlier this Court had
rejected the prayer of the petitioner for grant of anticipatory bail on merits and
as such, the same could not be interfered with only on the ground that a Co-
ordinate Bench has enlarged the other co-accused person on anticipatory bail
subsequently, as the rejection order dated 17.09.2020, passed by this Court
was not brought to the notice of Co-ordinate Bench which has granted
anticipatory bail to the co-accused vide order dated 30.09.2020.
Considering the aforesaid facts and circumstance, this Court does
not find it a fit case to grant anticipatory bail to the petitioner.
Accordingly, the prayer for grant of anticipatory bail to the
petitioner stands rejected.
However, if the petitioner surrenders before the Court of Justice
for grant of regular bail, the same shall be considered on the same day, on its
own merits, in accordance with law, without being prejudiced by the order
passed by this Court.
(Dr. S.N. Pathak, J.)
Kunal/-
AFR
