TaxTMI 
TaxTMI 
2009 (12) TMI 1079
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....ary for the petitioner to move before the trial court for his bail again when his bail application was rejected earlier by the Hon'ble Court? 2. We have heard learned Counsel for the petitioners, who has submitted that looking to the provisions of Section 439 of the Code of Criminal Procedure, 1973, it is not obligatory on the part of the petitioners to approach the Sessions Court first, on the contrary an option is left to the petitioners whether to approach the Sessions Court or to approach this Court, as both the Courts have concurrent jurisdiction for granting bail under Section 439 of Code of Criminal Procedure. It is also submitted by the learned Counsel for the petitioners that initially, the petitioners had approached the Sessions Court and the bail applications under Section 439 of the Code of Criminal Procedure, was rejected by the Sessions Court. Thereafter, these petitioners had approached this Court and this Court has also rejected the bail applications preferred by these petitioners, under Section 439 of the Code of Criminal Procedure. Now, thereafter again, the petitioners want to approach this Court and in these set of circumstances, especially, when this Cou....
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.... to this Court otherwise, if directly allowed the petitioners to approach to this Court, lot of time can be consumed in finding of the facts and from distant areas, police shall have to be called by the A.P.P for verification of the facts, whereas Sessions Court being a local court can verify the facts of the case easily and therefore, the bail applications can be decided earliest by the Sessions Court. 4. Having heard learned Counsel for both the sides and looking to the facts and circumstances of the case, it appears that: (i) the present applications have been preferred under Section 439 of the Code of Criminal Procedure, which reads as under: 439. (1) A High Court or Court of Session may direct- (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting....
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....1st Court, Dhanbad, Bihar requiring them to show-cause why the bail granted to the accused be not cancelled. The Respondent No. 3, Shri P. Kumar, Judicial Magistrate has sent his reply to the show-cause stating that the Accused-respondent No. 4 was granted only provisional bail which has been cancelled by him by his order, dated 8-6-1993 and that the accused has already been taken into custody. 2. In view of the fact that the Judicial Magistrate at a later stage has himself cancelled the bail, it is not necessary for us to pass any order with regard to the petitioner's prayer for cancellation of bail but the disturbing feature of the case is that though two successive applications of the accused for grant of bail were rejected by the High Court yet the learned Magistrate granted provisional bail. The Course by the learned Magistrate is not only contrary to settled principles of judicial discipline and propriety but also contrary to the statutory provisions (See in this connection AIR 1987 SC 1613). The manner in which the learned Magistrate dealt with the case can give rise to the apprehensions which were expressed by the complainant in her complaint, which was treated....
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....was earlier passed in favour of the appellant by the High Court, the application for cancellation was made entirely as a sequel of the observations made by Mr. Justice Gupta while dealing with the application of another accused. It must be, therefore, held that Mr. Justice Gupta had no authority to upset the earlier order of the High Court. That which could not be done directly could also not be done indirectly. Otherwise, party aggrieved by order passed by one Bench of the High Court would be tempted to attempt to get the matter re-opened before another Bench and there would not be any end to such attempts. Besides, it was not consistent with the judicial discipline which must be maintained by Courts both in the interest of administration of justice by assuming the binding nature an order which become final and the faith of the people in the judiciary. (Emphasis Supplied) Thus, it has been held by the Hon'ble High Court if the previous bail application has been decided by this Court, the petitioner must approach the higher forum and on the contrary, it has been held by the Hon'ble Patna High Court that trial court should not entertain such applications of bail ....
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....sed orders on March 18, 1986, releasing the bail application the matter was therefore not tied up to him. However, the learned judge failed to notice that when the bail application was listed before Justice Kamleshwar Nath on March 24, 1986 the respondent No. 1, for reasons known to him only, withdrew his application, as a result of which Justice Kamleshwar Nath dismissed the same as withdrawn. This fact was eloquent enough to indicate that respondent No. 1 was keen that the bail application should not be placed before Justice Kamleshwar Nath. Long standing convention and judicial discipline required that respondent's bail application should have been placed before Justice Kamleshwar Nath who had passed earlier orders, who was available as Vacation Judge. 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 inasmuch 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 hew factor having cropped up. If s....
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....cannot also be said that he must make out an 'exceptional' case before his petition for bail can be entertained. Acceptance of the view as laid down by the Court in Usman's case may result in defeating the right to liberty as guaranteed under the Constitution. 17. In view of the above, we are of the opinion that the provisions of Ss. 438 and 439 do not call for a restricted interpretation. The citizen has the right to choose. His application should be considered. Each case should be examined on its own merits. If it is found that the ground for grant of bail is not made out, the Court has the full jurisdiction to deny relief. Equally, if a case is made out, the citizen's liberty should not be allowed to be curtailed. However, we do not find any ground to deny the citizen's right to choose the forum to approach the Court and to make a prayer: This is not warranted by the provision. The reference is accordingly answered. The matter shall now be listed before the learned Single Judge. Thus, it has been held by Hon'ble High Court of Kerala that the bail application preferred by the petitioner cannot be thrown out merely on the ground t....