JUDGMENT Shiv Kumar Sharma, J.
1. Instant criminal miscellaneous petition involves manifold legal questions that run as follows :
(i) Whether after rejection of anticipatory bail application by the High Court, is the accused entitled to make second bail application before the Sessions Court under Section 438, Cr.P.C ?
(v) What are the principles of judicial discipline and propriety ?
2. Contextual facts depict that informant Fateh Singh instituted FIR on March 26, 1997 with the Police Station Mahuwa in regard to death of his sister Vinod Kumari under suspicious circumstances in the house of the accused petitioners. Deceased was married to accused Dr. Suresh Chand Meena on June 20, 1995 and died on March 25, 1997. The informant stated in the FIR that he himself had seen the dead body of his sister. It turned blue completely and blood was oozing from the mouth and nostrils. Request of the informant for medical examination of the body was declined by the accused and it was cremated. It was also stated in the FIR that before her death, Vinod Kumari whenever visited the house of the informant, she used to complain that the accused had harassed and humiliated her in connection with demand of dowry. Police Station Mahuwa registered a case bearing FIR No. 98/97 under Sections 498-A, 304-B and 201, I.P.C. against the accused.
Apprehending arrest the accused petitioners made application under Section 438, Cr.P.C. before the Sessions Judge, Dausa but the same was dismissed on July 15, 1998. Thereafter the High Court was approached through S.B. Criminal Misc. Bail Application No. 3515 of 1998. While declining to issue direction under Section 438, Cr.P.C, the High Court on August 21, 1998 made following order :
Hon'ble Mr. P.C Jain, J.
Mr. Naina Saraf for the petitioners Mr. S:M. Poddar, P.P.
Mr. Shiv Lal for complainant.
After having perused the case diary more particularly the statements of Fateh Singh, Kistoori and Harphool and the fact that the deceased Vinod died within two years of her marriage in suspicious circumstances, I am not inclined to grant pre-arrest bail to the petitioners. The bail application is, therefore, rejected."
3. Even after the aforequoted rejection order of the High Court, the accused petitioners made second bail application under Section 438, Cr.P.C. before the Sessions Judge, Dausa and the Sessions Judge (Mr. R.L. Agarwal R.H.J.S.) vide order dated October 30, 1998 granted anticipatory bail to the accused petitioners.
4. Thereafter Fateh Singh, the brother of the deceased, made an application under Sub-section (2) of Section 439, Cr.P.C. seeking cancellation of bail. The Sessions Judge, Dausa (Mr. P.K. Bhatia, R.H.J.S.) dismissed the application on May 5, 2000 with the observations that the accused petitioners did not conceal the fact of earlier rejection, therefore, the bail once granted could not be cancelled. The complainant assailed both the orders respectively passed on October 30, 1998 and May 5, 2000 by the Sessions Judge, Dausa in the High Court by filing application under Sub-section (2) of Section 439, Cr.P.C. bearing S.B. Criminal Misc. (Cancellation of Bail) Application No. 2750 of 2000, This Court vide order dated October 11, 2000 remitted back the matter for fresh decision to the Sessions Judge, Dausa with the following directions :
"Therefore, the matter is remitted back under Section 439(2), Cr.P.C. to Sessions Judge, Dausa with a direction to dispose of the application of the complainant afresh and decide as to whether after rejection of anticipatory bail application by the High Court, is the second aplication under Section 438, Cr.P.C. maintainable before the Sessions Judge."
5. The Sessions Judge, Dausa vide order dated November 7, 2000 allowed the application made by the complainant Fateh Singh under Sub-section (2) of Section 439, Cr.P.C. and cancelled the bail granted to the accused petitioners vide order dated October 30, 1998 under Section 438, Cr.P.C. and pursuant thereto vide order dated November 30, 1998 by the Judicial Magistrate, Mahuwa.
6. The accused petitioners in the instant criminal miscellaneous petition seek to quash the. aforequoted order dated November 7, 2000.
7. Mr. Suresh Sahni, learned Counsel for the accused petitioners vehemently canvassed that the matter could not have been remitted back but ought to have been dealt with by the High Court under its jurisdiction in order to settle the controversy between the parties once for all. It was further contended that the Sessions Judge has not exercised the powers under Sub-section (2) of Section 439, Cr.P.C. independently and the impugned order stands influenced by the order dated October 11, 2000 passed by the High Court. It was next contended that the Sessions Judge has concurrent jurisdiction under Section 438, Cr.P.C. along with the High Court and is free to exercise the same in the changed circumstances. Grant of indulgence under Section 438, Cr.P.C. is a discretionary matter and cannot be put in a strait jacket formula. The discretion was rightly exercised by the Sessions Judge looking to the fact that accusations levelled against the accused petitioners do not connect them even remotely with the alleged offences. The petitioners did not conceal the fact of earlier rejection order of the High Court and put a specific note on the second bail application to this effect and also filed detailed affidavit. The second bail application was maintainable and the complainant had no locus standi to make cancellation application under Sub-section (2) of Section 439, Cr.P.C. Learned Counsel also urged that the accused petitioners never misused the liberty. Two of the accused petitioners are women and considerations of equity should prevail as no purpose will be served to send them to Jail. In support of his contentions learned Counsel placed reliance on various judicial pronouncements, those shall be dealt with in the later part of this judgment.
8. Per contra Mr. M.K. Kaushik, learned Counsel for the complainant supported the impugned order and urged that petition under Section 482, Cr.P.C. is not maintainable against the impugned order. Learned Counsel further contended that the course adopted by the learned Sessions Judge while passing the impugned order was not only contrary to settled principles of judicial discipline and propriety but also contrary to statutory provisions. The complainant has locus standi to assail the arbitrary and illegal order of the Sessions Judge. Various authorities cited by the learned Counsel shall be referred at appropriate juncture.
Maintainability of second anticipatory bail application.
9. The first question that requires my consideration is as to whether second anticipatory bail application after rejection of the first by the High Court, is maintainable ?
10. It may be understood that power to grant anticipatory bail does not flow from Article 21 of the Constitution of India but it has been conferred by the statute enacted by the Parliament and the Parliament can, by amending the Code of Criminal Procedure or by enacting special law take it away also. Even this provision can be omitted by the State Amendment and such amendment will not have the effect of depriving a person of his personal liberty. State of Uttar Pradesh by U.P. State Amendment excluded the applicability of Section 438, Cr.P.C. But the provisions contained in Section 439, Cr.P.C. cannot be omitted as they flow from Article 21 of the Constitution and relate to personal liberty of a person.
11. The Law Commission in its 48th Report observed thus :
"31. The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendation made by the previous Commission (41st Report). We agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised.
We are further of the view that in order to ensure that the provision is not but to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the Public Prosecutor. The initial order should only be an interim one. Further the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the Court is satisfied that such a direction is necessary in the interest of justice...."
It is thus evident that the Law Commission intended that the provisions of anticipatory bail should not be put to abuse at the instance of unscrupulous petitioners and this extraordinary remedy has to be resorted to only in exceptional cases. A bare look at Section 438, Cr.P.C. demonstrates that grant of anticipatory bail is a matter of judicial discretion and the Court must be satisfied that a fit case had been made out by accused for exercise of such discretion. The Court has to make an effort to strike a balance between the individual's right to personal freedom and the investigational rights of the police. The provisions of Section 438, Cr.P.C. are not to be applied mechanically. The phraseology "if it thinks fit" available in the body of the section reading with Sub-section (2) thereof is indicative enough that such order on the face of it must show the reasons for granting anticipatory bail. Sub-section (1) of Section 438, Cr.P.C. provides thus :
"When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Sessions for a direction under this section, and that Court may if it thinks fit direct that in the event of such arrest he shall be released on bail.
By the use of the word "or" in Sub-section (1) of Section 438, the Legislature has invested the Court of Sessions and the High Court with concurrent jurisdiction. If the accused makes an application for anticipatory bail to the Sessions Judge and that application is rejected, he can make a subsequent application to the High Court. But after the High Court dismisses the anticipatory bail application, can the accused file another application under Section 438, Cr.P.C. ?
In order to consider this question a close look at Sub-section (1) of Section 438 is necessary. Apprehending arrest on an accusation of having committed a non-bailable offence an accused may make anticipatory bail application and the Court if it thinks fit direct that the accused in the event of such arrest shall be released on bail. But if the Court does not think fit to issue direction and dismisses the anticipatory bail application, the accused is not entitled to file another application for the same relief as the accusation against the accused remains the same and after exercising his right once, the accused cannot be permitted to make successive applications as there is no change in the fact situation.
Division Bench of Calcutta High Court in a case reported in (1988) 18 Reports 254 (DB) (Calcutta) indicated thus-
"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."
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.
12. From the language of Section 438 it becomes explicitly clear that the Legislature intended to bring 'anticipatory bail" within the category of 'bail'. There is no substantial difference between Sections 438 and 439, as regards the appreciation of the case as to whether or not a bail is to be granted. The only distinction is that in a case under Section 438, the person who approaches the Court apprehends that he may be arrested without any basis whereas under Section 439, such person approaches the Court after his arrest. As already stated the power to grant anticipatory bail does not flow from Article 21 of the Constitution but it has been conferred by the statute enacted by the Parliament whereas provisions contained in Section 439 flow from Article 21 of the Constitution of India.
If bail application of the accused under Section 439 is dismissed once he can move successive bail application if there is a substantial change in factual situation between the earlier bail application and the subsequent one, but successive bail application on the basis of new arguments and new twists on same facts should not be encouraged. Speedy trial is a constitutional right of the accused provided to him by Article 21 of the Constitution. If first application of the accused is dismissed on merits and the trial is delayed, the accused has a right to make second bail application on the ground of delayed trial. Section 439 relates to constitutional right of the accused whereas Section 438 to his statutory right. Section 438 does not presuppose any change in the fact situation and once right under Section 438 is denied to the accused, he is not at liberty to misuse it by moving successive bail applications. The provisions of Section 438 should not be put to abuse at the instance of unscrupulous accused.
13. Now I proceed to deal with the submissions advanced by learned Counsel for the petitioner in regard to maintainability of second anticipatory bail application. Babu Singh v. State of U.P., (1978) SCC 579, was the case wherein the High Court convicted the accused under Section 302, I.P.C. The accused approached the Supreme Court in their statutory right of appeal. Hon'ble Supreme, Court rejected the bail application of the accused but granted second bail application after six months with the following observations :
"An order refusing an application for bail does not necessarily preclude another on a latter occasion giving more materials, further developments and different considerations. While the Court should set store by the circumstance that the bail application was once rejected it cannot be said that the Court is barred from second consideration at a later stage."
In Babu Singh's case (supra), their Lordships of the Supreme Court were considering the factors that heavily tipped the scales of justice in favour of release of accused on bail pending the decision of his appeal and observations made in Kashmira Singh v. State of Punjab, (1977) 4 SCC 291, were referred in para 24 thus-
"... It is, therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence."
14. Case of Babu Singh (supra), relates to fundamental right of personal liberty of the accused guaranteed to him under Article 21 of the Constitution of India and the ratio of the said case is not applicable to the maintainability of second bail application under Section 438, Cr.P.C. As already stated that after dismissal of first bail application under Section 438, Cr.P.C. by the High Court, the accused is not entitled to ask for the same relief again by making second anticipatory bail application as the accusation against the accused remains the same. Anticipatory bail application is filed by the accused apprehending arrest on an accusation of having committed non-bailable offence and once it is denied it cannot be made again and again on the basis of new arguments and new twists. Fact-situation in respect of accusation of non-bailable offence only changes with the filing of final report by the investigating officer and Section 169, Cr.P.C. and not before. Section 169, Cr.P.C. reads as under-
"169. Release of accused when evidence deficient-If upon an investigation under this Chapter it appears to the officer incharge of the police station that there is no sufficient evidence or reasonable ground of suspicion to justifying the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or commit him for trial."
It is, thus, evident that when fact situation in respect of accusation is changed there is no need of seeking anticipatory bail and in that event even an Investigating Officer may release the accused on his executing a personal bond with or without sureties.
15. In Ram Gopal v. The State of Rajasthan, 1983 RLW 270, this Court indicated that if there are some circumstances which were not before the Court when the earlier bail application was rejected, or some additional grounds or there are 'some further developments' and 'different considerations' and if 'some more details' are available at a later stage at the time of second or subsequent bail application, the Court has jurisdiction to entertain the subsequent bail application.
The provisions contained in Section 438, Cr.P.C. escaped attention of this Court in the case of Ram Gopal v. State of Rajasthan (supra), I do not conceive any change in the fact situation of the 'accusation' already considered by the High Court at the time of rejection of earlier bail application. 'Further developments', 'different considerations' and 'some more details' may be good grounds for making second bail application under Section 439, Cr.P.C. but on these grounds no second bail application under Section 438 is competent. Therefore, the case of Ram Gopal v. The State of Rajasthan (supra), is hit by doctrine of per incurium being rendered without noticing the mandate of Section 438, Cr.P.C. in respect of fact situation of "accusation of non-bailable offence" which remains the same till the completion of investigation.
16. Upshot of the above discussion is that-
(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.
17. I, therefore, hold 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.
Locus standi of complainant in seeking cancellation of bail under Section 439(2) of Cr.P.C.
18. That takes me to another submission of the learned Counsel for the accused petitioners in regard to locus standi of the complainant in seeking cancellation of bail under Sub-section (2) of Section 439, Cr.P.C Placing reliance on Thakur Ram v. State of Bihar, AIR 1966 SC 911, it was contended that only the State being aggrieved party could take all steps necessary and the complainant had no locus standi to file even criminal revision. Learned Counsel for the complainant refuted this argument by placing reliance on Pratap v. State of U.P., (1973) 3 5CC 690, and Hari Bhagwan Bansal v. State of Rajasthan, S.B. Cr. Revision Petition No. 182/1977 decided by this Court on January 27,1998. In these cases it has held that private party can draw the attention of the High Court towards an illegal, improper and incorrect findings of the subordinate Courts.
19. I do not find any merit in the submission of learned Counsel for the petitioners in view of ratio propounded in Rathinam v. State, 2000 (1) Crimes 211 (SC), by their Lordships of the Supreme Court that power to cancel bail can be exercised under Sub-section (2) of Section 439, Cr.P.C. suo motu or at the instance of State or any aggrieved party.
Powers of High Court under Section 439(2) of Cr.P.C.
20. It was contended by learned Counsel for the accused petitioners that the High Court could not have remitted the application under Section 439(2), Cr.P.C. back to the Sessions Court, instead it should have itself decided it. I find no merit in this argument.
Full Bench of Madhya Bharat High Court in the case of Kamal Chand v. Amar Chand, AIR 1952 Madhya Bharat 180, had occasion to interpret old Section 498 (now Section 439, Cr.P.C.) and held that jurisdiction of the High Court under this section is not merely concurrent but revisional.
21. When application made by the complainant under Section 439(2) was dismissed by the Sessions Judge on the ground that the accused petitioners did not conceal the fact of earlier rejection of their bail applications, this Court remitted the matter back for a fresh decision. The Sessions Judge who earlier ignored to consider the effect of 'rejection order of the High Court', was directed to decide as to whether in view of earlier rejection order of the High Court, second anticipatory bail application was maintainable in the Sessions Court ?
High Court possesses the general power of superintendence over the actions of the Courts subordinate to it. Such power when administered on administrative side, is known as the power of superintendence and on the judicial side the power of revision or inherent power. High Court can suo motu interfere with the miscarriage of justice arising from misconception of law and irregularity of procedure and may make orders as may be necessary for the ends of justice.
22. It is difficult to agree with the submission of learned Counsel for the accused petitioners that the Sessions Judge could not exercise the powers under Section 439(2), Cr.P.C. independently and was influenced by the directions of the High Court. The Sessions Judge was only asked to decide the legal question whether the Sessions Judge could have entertained the second anticipatory bail application even after rejection order passed by the High Court. The Sessions Judge who in the earlier order justified his action of granting anticipatory bail to the accused petitioners on the ground that no concealment of earlier rejection order was made by them, could have again justified the order of granting bail had he reasons and legal grounds to justify the same.
23. This Court as already stated, dismissed the bail application of the accused petitioners made under Section 438, Cr.P.C. on August 21, 1998 after considering the case diary and the statements of Fateh Singh, Kistoori and Harphool and also the fact that the deceased Vinod died within two years of her marriage. But it is distressing to note that the learned Sessions Judge only after two months and nine days of the High Court's rejection order, when the ink of the order was still wet, ignored the order and granted bail to the accused petitioners.
24. Ratio o Hajuri v. Brundaban, (2000) 6 SCC 533=VI (2000) SLT 182, relied upon by the learned Counsel for the accused petitioners, is not applicable in the facts and circumstances of this case. In Hajuri's case (supra), the proceedings before the High Court did arise out of Sections 6 and 7 of the Orissa Estates Abolition Act, 1961 and the matter under Section 8 was pending elsewhere. It was under these circumstances held by their Lordships of the Supreme Court that High Court was wholly unjustified to decide the question and include it as one of the issues to be decided by the lower Authorities on remand.
25. Learned Counsel for the accused petitioners placed reliance on Dolat Ram v. State of Haryana, (1995) 1 SCC 349=IV (1994) CCR 851 (SC), and contended that even in a dowry death case, the cancellation of anticipatory bail by the High Court was held to be unjustified. In Dolat Ram's case (supra), the anticipatory bail was initially granted by the Additional Sessions Judge, Rohtak in a dowry death case to the parents and the brother of the husband of the deceased Smt. Sunita. In the FIR it was alleged that victim lady and her husband were living separately away from her in-laws. No bail was granted to her husband. The State of Haryana moved High Court seeking cancellation of bail and the High Court cancelled the bail. Their Lordships of the Supreme Court set aside the order of the High Court and observed as follows :
"Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail, already granted."
26. Ratio of Dolat Ram's case (supra), is not applicable in the facts of the instant case. Here the anticipatory bail application of the husband, mother-in-law and sister-in-law of the deceased Smt. Vinod was initially dismissed by the High Court but even after the said rejection the Sessions Judge granted second anticipatory bail application made by them. The anticipatory bail granted to the accused petitioners in this manner was cancelled under Section 439(2), Cr.P.C.
27. Bench of the Hon'ble three Judges of the Supreme Court in Pokar Ram v. State of Rajasthan, AIR 1985 SC 969, propounded in para 10 thus-
".... The only question which we were called upon to decide is whether the learned Sessions Judge was justified in granting anticipatory bail in the facts and circumstances of this case ? Unquestionably, no case was made out for granting anticipatory bail in this case. Let it be made distinctly clear that status in life, affluence or otherwise are hardly relevant considerations while examining the request for granting anticipatory bail. Anticipatory bail to some extent intrudes in the sphere of investigation of crime and the Court must be cautious and circumspect in exercising such power of a discretionary nature. This case amply illustrates that the power was exercised sub silentio as to reasons or on considerations irrelevant or not germane to the determination. This Court to avoid miscarriage of justice, must interfere."
Principles of judicial discipline and propriety
28. Principles of judicial discipline and propriety demand that the Judges whatever their own views, must follow the decision of the superior Courts to which they are judicially subordinate. Learned Sessions Judge, Dausa ought to have followed the ratio indicated by the High Court in its rejection order. In Samunder Singh v. State of Rajasthan, AIR 1987 SC 737, their Lordships of the Supreme Court propounded that when the matter regarding unnatural death of daughter-in-law in her father-in-law's house was under investigation, it was not prudent to grant anticipatory bail.
Under Article 141 of the Constitution of India, the law declared by the Supreme Court is made binding on all Courts of India. The Courts should treat a decision of the Supreme Court as an authority not only for what it declares or decides by express enunciation but also for what follows from such declarations by clear implication by way of logical deduction. Unfortunately in the instant matter learned Sessions Judge neither followed the ratio of the High Court's order nor cared to look at the binding decision of the Apex Court and knowing fully well that the High Court once rejected the anticipatory bail by a well-reasoned order, allowed second bail application under Section 438, Cr.P.C. made by the accused petitioners. The course adopted by the learned Sessions Judge was contrary to settled principles of judicial discipline and propriety.
29. Their Lordships of the Supreme Court in Bimla Devi v. State of Bihar, 1994 Criminal LJ 638, held that provisional bail granted by Magistrate in spite of rejection of two earlier successive bail applications by the High Court was against the principles of judicial discipline.
30. This Court in Sahabuddin Meb v. Shiv Lal and Ors., 1990 RCC 445, observed in somewhat similar situation, thus-
"No doubt the powers of this Court as well as of Sessions Court are concurrent but the question is that once this Court has disallowed bail application under Section 438, Cr.P.C. whether propriety demands or is it proper for the learned Sessions Judge then to allow bail to the same accused person to whom bail has been disallowed by this Court ? In my opinion learned Sessions Judge may have jurisdiction but in a case in which this Court has dismissed bail then it will he improper exercise of jurisdiction and discretion to allow bail to the accused person. If this view is not taken then there may be no sanctity of the higher Court and if this Court dismisses the bail application, next day learned Sessions Judge will release the accused person on bail."
31. That takes me to the last submission of the learned Counsel that out of the three accused petitioners who are women and no purpose will be served to send them to jail, therefore, this Court may interfere with the impugned order on equitable grounds, I am unable to pursuade myself to agree with the submissions of learned Counsel. I have to decide the matters before me strictly in accordance with law. Law cannot be overshadowed by the equity. In the facts and circumstances of the case I am unable to take liberal view. Their Lordships of Supreme Court in Council for Indian School Certificate Examination v. Isha Mittal, (2000) 7 SCC 521=I (2001) SLT 383, had occasion to compare equity with the law and it was propounded that (para 4) :
"If it is the obligation of the High Court to decide the matters before it in accordance with law. If the law was, as High Court observes in the passage quoted above, in favour of the appellant before it, it was obliged to make an order in favour of the appellant: Consideration of equity cannot prevail and do not permit a High Court to pass an order contrary to the law."
(Underlining is mine)
32. For the reasons stated above I do not see any infirmity with the impugned order to be interfered with by this Court under Section 482, Cr.P.C. Anticipatory bail granted to the accused petitioner was rightly cancelled and the orders dated October 30, 1998 and November 30, 1998 respectively passed by the learned Sessions Judge, Dausa (under Section 438(1), Cr.P.C.) and the learned Judicial Magistrate, Mahuwa (under Section 438(3), Cr.P.C.) were correctly set aside.
33. In the result the criminal miscellaneous petition stands dismissed. Let a copy of this order be placed before Hon'ble the Chief Justice for taking such action against the erring judicial officer on the administrative side as may be deemed fit by his Lordship.