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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION No 4817 of 2004
For Approval and Signature:
HON'BLE MR.JUSTICE R.K.ABICHANDANI
and
HON'BLE MR.JUSTICE C.K.BUCH
and
HON'BLE MR.JUSTICE D.H.WAGHELA
============================================================
1. Whether Reporters of Local Papers may be allowed : YES
to see the judgements?
2. To be referred to the Reporter or not? : YES
3. Whether Their Lordships wish to see the fair copy : NO
of the judgement?
4. Whether this case involves a substantial question : NO
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the concerned : NO
Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals?
--------------------------------------------------------------
BABUBHAI BACHUBHAI BHABHOR
Versus
STATE OF GUJARAT
--------------------------------------------------------------
Appearance:
1. Criminal Misc.Application No. 4817 of 2004
MR.M.M.TIRMIZI, Advocate for MR.PRITESH L. PARIKH,
Advocate for the applicant.
MR.K.J.SHETHNA, SR. ADVOCATE, MR.A.D.SHAH, ADVOCATE,
MR.K.B.ANANDJIWALA, ADVOCATE AND MR.M.J.BUDDHBHATTI,
ADVOCATE. (Interveners).
MR.A.D.OZA, GOVERNMENT PLEADER with MR.R.C.KODEKAR,
ADDITIONAL PUBLIC PROSECUTOR for the respondent - State
of Gujarat.
--------------------------------------------------------------
CORAM : HON'BLE MR.JUSTICE R.K.ABICHANDANI
and
HON'BLE MR.JUSTICE C.K.BUCH
and
HON'BLE MR.JUSTICE D.H.WAGHELA
Date of decision: 12/08/2004
ORAL JUDGEMENT
(Per : HON'BLE MR.JUSTICE R.K.ABICHANDANI for the Court)
1. This Special Bench has been constituted by the
Hon'ble the Chief Justice for considering whether the
procedural directions given by the learned Single Judge
in the present application by order dated 29-7-2004
should be followed and all the subsequent bail
applications under Sections 438 and 439 of the Code of
Criminal Procedure be notified before the appropriate
Bench as per the roster, except the applications filed
under Section 439 after the submission of charge-sheet,
or whether the present practice of notifying the
subsequent bail applications before the same Judge, who
decided the earlier bail application of the accused, be
continued to be followed. The Hon'ble the Chief Justice,
"looking to the importance of the matter and also the
fact that this question may pose problems in future", has
directed that the said question be placed for
consideration and decision before this Bench.
2. It is stated in the present Miscellaneous
Application that the petitioner had earlier filed in this
Court, Miscellaneous Criminal Application No.8778 of 2003
before the filing of the Charge-sheet, which was rejected
as withdrawn on 23rd October 2003 by the learned Single
Judge. It also appears from the record that the
petitioner had preferred an application under Section 439
of the Code (Criminal Misc. Application No.515 of 2004)
before the Sessions Court, Godhra, at Dahod, after the
charge-sheet was filed on 28-12-2003, and that
application was rejected by the Additional Sessions
Judge, Panchmahals, Camp Dahod, on 17th May 2004 by a
reasoned order. It is recorded in paragraph 5 of that
order that the earlier application (Criminal Misc.
Application No.1163 of 2003) filed by the accused under
Section 439 was rejected. After the petitioner's
application under Section 439 was rejected by the
Additional Sessions Judge on 17th May 2004, the
petitioner has filed the present application again under
Section 439 before this Court for bail. This application
came to be placed before the same learned Single Judge,
who had rejected the earlier application as withdrawn on
23-10-2003, in view of the Circular dated 8th April 2002
issued in compliance of the direction of the Hon'ble the
Chief Justice that: "Let the Law of the Land be
followed", given in the context of the decisions of the
Supreme Court in Shahzad Hasan Khan v. Ishtlaq Hasan
Khan, reported in AIR 1987 SC 1613 and Harjeet Singh
alias Seeta v. State of Punjab, reported in AIR 2002 SC
281, to the effect that the subsequent bail applications
were required to be listed before the same Judge who
decided the earlier bail applications.
3. By order dated 20th March 2002 made on Criminal
Misc. Application No.5025 of 2001 filed by a Complainant
for cancellation of bail, the learned Single Judge
(Hon'ble Mr.Justice B.J.Shethna) had directed the office
"to obtain general orders from the Hon'ble the Chief
Justice that, in future, all the subsequent bail
applications be placed before the same Hon'ble Judges who
decided bail applications earlier", expressing the
opinion that the application of the complainant was
required to be placed before the learned Single Judge who
had granted bail to the accused. Thereupon, on the
office note dated 5th April 2002, in which the decision
of the Supreme Court in Shahzad Hasan's case (supra) was
referred, the Hon'ble the Chief Justice made the
following order: "Let the Law of the Land be followed".
Thereafter, the Circular came to be issued on 8th April
2002 in compliance of the directions. The said circular
is re-produced hereunder for ready reference:
C I R C U L A R
In view of the decisions of the Hon'ble Supreme
Court in case of Shahzad Hasan Khan v. Ishtlaq Hasan
Khan, reported in AIR 1987 SC 1613 and Harjeet Singh
alias Seeta v. State of Punjab, reported in AIR 2002 SC
281, relating to subsequent bail applications to be
listed before the same Judge who decided the earlier bail
applications, the Honourable the Chief Justice has been
pleased to direct that the law of the land be followed.
Therefore, in compliance of the directions as
above, all the concerned are directed to list the
subsequent bail applications by the same accused, before
the same Judge who decided bail applications earlier.
Same practice would also follow even for setting aside
the order passed by the Hon'ble Court granting bail.
All the concerned are, therefore, directed to
follow the above instructions scrupulously, failing which
it would be viewed seriously.
High Court of Gujarat By order,
Ahmedabad 380 060
Date : 8th April 2002 (M.G.Gulabani)
Joint Registrar"
4. It also appears from the record placed before us
that, on 12th March 2004, a Division Bench of this Court,
dealing with Criminal Misc. Application No. 2201 of
2004 for temporary bail under Section 389(1) of the Code,
which was placed before that Bench in compliance of the
said Circular since it had earlier rejected the bail by
order dated 13-2-2001, directed that the Registry should
obtain order from the Hon'ble the Chief Justice for
placing that application before the appropriate Court as
per the roster as it was of the opinion that the
application should not have been notified before it. The
Division Bench relied upon paragraph 13 of the judgement
of the Supreme Court in Mehboob Dawood Shaikh v. State
of Maharashtra, reported in 2004 AIR SCW 527, while
making the said order. The Division Bench observed that
the considerations for refusal of regular bail during the
pendency and hearing of the appeal would be quite
different than those which may apply while considering
the questions of the grant of temporary bail. The matter
was, therefore, placed before the Hon'ble the Chief
Justice by the Registry and the Hon'ble the Chief Justice
approved the office note dated 16th March 2004 to the
effect that the said Criminal Misc. Application be
notified as per the roster and that henceforth,
subsequent temporary bail applications under Section 389
and the applications for cancellation of bail under
Sections 437(5) / 439(2) of the Code of Criminal
Procedure be placed before the appropriate Court as per
the roster instead of placing them before the same Bench.
5. The learned Single Judge, while making the order
dated 29th July 2004, releasing the present application
from the Board, held that the aforesaid Circular was
based on a misconception of the law laid down by the Apex
Court. In paragraph 2 of the order, the learned Single
Judge said this in the following words :
"I have carefully gone through the decisions
mentioned in the circular and also other
decisions of the Apex Court as well as this Court
in relation to this subject. In my humble
opinion, the circular appears to have been on
misconception of law laid down by the Apex Court.
Neither the Joint Registrar nor the Registrar of
this Court seems to have properly appreciated the
peculiar circumstances appearing in those cases
and the stage at which such orders have been
passed."
5.1 Dealing with Shahzad's case, the learned Single
Judge observed:
"This decision appears to have been delivered in
light of the practice that was prevailing in that
High Court and also in view of the peculiar facts
of the case."
It was further observed:
"Moreover, the learned Judge who has delivered
decision in Shahzad Hasan Khan's case (supra) was
well aware of the practice followed by this Court
having been elevated to the Supreme Court from
this Court."
5.2 So far as the decision of the Supreme Court in
State of Maharashtra v. Captain Buddhikota Subha Rao,
reported in AIR 1989 SC 2292 is concerned, the learned
Single Judge observed: "It was rendered in the peculiar
facts of that case ...........". The learned Single
Judge again observed even for this decision of the
Supreme Court as under :
"Even in this case, the learned Single Judge who
delivered the decision was well aware of the
practice of this Court having been elevated to
the Apex Court from this Court."
5.3 The third decision of the Supreme Court in
Harjeet Singh (supra) was distinguished on the ground
that it appeared "to have been delivered with a view to
avoid unhappy position when one learned Judge of the same
High Court sits in appeal over the decision rendered by
another learned Judge of the same High Court".
5.4 Relying upon paragraph 13 of the decision of the
Supreme court in Mehboob Shaikh (supra), which was
rendered in the context of an application for
cancellation of bail and the order of the Division Bench
dated 12th March 2004 in Criminal Misc. Application
No.2201 of 2004, the learned Single Judge held that,
"though both these cases are in relation to application
made for cancellation of bail, the principle enunciated
therein can well be applied in cases where application
for bail is made".
5.5 The learned Single Judge then proceeded to
classify the stages of bail applications, namely,
(i) Application under Section 438 of Cr.P.C. for
anticipatory bail.
(ii) Application under Section 439 of Cr.P.C. before
the submission of the charge-sheet, and
(iii) Application under Section 439 of Cr.P.C. after
the submission of the charge-sheet.
It was held that these cannot be termed as
"successive" or "repeated" bail applications in the sense
and in the context in which those terms were used by the
Apex Court, "especially when at every stage stated above,
there is scope of new material being available during the
course of investigation which may have its influence over
the Court's decision on the issue of bail". It was held:
"It is only after 3rd stage the scope of
introduction of new material or making new
submissions almost vanishes. In my opinion, the
applications which may be filed after 3rd stage
can be termed as "repeated" or "successive" bail
applications within the meaning of decisions of
the Apex Court. It is an established proposition
of law that unless substantial change of
circumstances is shown no bail application which
filed after the third stage can be entertained on
its merits. It is after the third stage there
are chances as also the scope for the accused to
play mischief by getting the application placed
before some Judge other than the Judge who
decided the application under Section 439 of the
Cr.P.C. which is filed for the first time after
the submission of the charge-sheet."
5.6 The learned Single Judge then proceeded to
enumerate difficulties created by the circular, namely,
(i) a large number of such applications that the Judge
may have to deal with would stick to that learned Judge
for all time to come; (ii) the purpose behind placing the
successive bail applications before the same learned
Judge was that the learned Judge would remember what
transpired earlier, but in reality, he will not be able
to remember all facts and events that had taken place
during the hearing at the first or second stage after a
period of time; (iii) the Single Judge, if sitting in a
Division Bench, will have to break the Division Bench,
disrupting his work and causing inconvenience to the
other learned Judge; (iv) litigants will have to wait and
depend upon the availability of that particular learned
Judge; (v) pre-trial prisoners will have to wait and
again depend upon the availability of that particular
learned Judge, and (vi) Selection of learned Judge was
equally possible in such matter by filing applications
and securing a particular Judge for all subsequent
occasions.
5.7 The learned Single Judge finally observed: "In
my opinion, the Apex Court could never have intended
causing such hardships to all concerned", and released
this application for being placed before the Hon'ble the
Chief Justice for appropriate orders.
6. It was contended by the learned counsel for the
applicant and the other learned counsel who were allowed
to intervene that the stages of the applications under
Sections 438 and 439 of the Code were entirely different
and therefore, after rejection of an application under
Section 438 of the Code, the subsequent application made
under Section 439 was not required to be placed before
the same Judge even on the ratio of the decisions of the
Supreme Court on the basis of which the Circular was
issued. It was further argued that even in respect of
the applications under Section 439, those made prior to
the filing of a charge-sheet stood on a different footing
than the applications made after the filing of the
charge-sheet. Therefore, when an application is made
under Section 439 of the Code, prior to the issuance of
the charge-sheet is rejected, and a fresh application is
filed after the filing of the charge-sheet, such fresh
application cannot be said to be a "successive" or
"repeated" application and therefore, it would not be
required to be placed before the Judge who had rejected
the application for bail made under Section 439 prior to
the filing of the charge-sheet. Reliance was placed on
the decision of a learned Single Judge of this Court in
case of J.S.Bhatt v. State of Gujarat, reported in
XXXIII(2) GLR 832 in support of the contention that the
application filed after the presentation of the
charge-sheet stood entirely on a different footing and
cannot be treated as a "successive" bail application. It
was also submitted that the applications for temporary
bail and cancellation of bail stood on a different
footing and need not be placed before the Judge who had
earlier refused the bail. As noted above, this aspect
was already taken care of by the orders of the Hon'ble
the Chief Justice made on 16-3-2004. It was submitted by
all the learned counsel that subsequent bail applications
filed under Section 439 of the Code after the
presentation of the charge-sheet need not be placed
before the learned Judge who might have rejected the bail
application made by the same person under Section 438 or
under Section 439 prior to the filing of the
charge-sheet. It was also tried to be contended on
behalf of the applicant that the decisions of the Apex
Court were based on the practice prevalent in the High
Courts of Allahabad and Bombay and no such practice
existed in the High Court of Gujarat and therefore, the
Circular could not have been issued for adopting similar
practice in this High Court.
7. The learned Government Pleader argued that all
the subsequent applications made under Section 438 of the
Code may be placed before the Judge who may have rejected
similar application under Section 438. It was also
submitted that applications made under Section 439 before
the charge-sheet is filed can be placed before the Judge
who may have disposed of a similar earlier application
made before the filing of the charge-sheet, while the
subsequent applications can be placed before the learned
Judge who rejected the application first made under
Section 439 after the filing of the charge-sheet.
8. We may now proceed to consider the decisions of
Hon'ble the Supreme Court on the basis of which the
practice of directing the subsequent bail applications
before the Judge who decided earlier similar application
of that accused was crystalised by the Circular as
modified by the subsequent order dated 16-3-2004.
8.1 In Shahzad Hasan's case, after three successive
bail applications were rejected and finally disposed of
by a Judge of the Allahabad High Court, another Judge who
had directed the subsequent application to be placed
before the same Judge who had rejected the earlier
applications, later recalling that order, himself
entertained that subsequent application and granted bail
to the accused. The Supreme Court, in paragraph 5 of the
judgement, held that, in view of the fact that the three
successive bail applications made by the accused had been
rejected and disposed of finally by a Judge, it would
have been appropriate and desirable and also in keeping
with the prevailing practice in the High Court that the
subsequent bail application should have been placed
before the same Judge. The Supreme Court 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
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 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 there would be wastage of courts' time.
Judicial discipline requires that such matter
must be placed before the same Judge, if he is
available for orders." (emphasis added).
8.2 It is clear from the decision in Shahzad Hasan
case that the proposition that if the bail applications
of an accused are rejected by a particular Judge,
subsequent bail applications by that accused should be
placed before the same Judge, was not based only on the
practice that prevailed in the Allahabad High Court, but
was found to be rooted in principle. The convention that
subsequent bail applications should be placed before the
same Judge prevents abuse of process of the Court, avoids
passing of conflicting orders and saves Court's time.
The Supreme court in terms held: "Judicial discipline
requires that such matter must be placed before the same
Judge, if he is available for orders". Thus, the ratio
of this case could not have been confined to its facts on
the basis of existence of a practice in Allahabad High
Court or absence of practice in this High Court, as done
by the learned Single Judge, while releasing the present
application. The ratio of the decision of the Supreme
Court is loud and clear that judicial discipline demands
that where bail application of an accused is rejected by
a Judge, his subsequent bail applications should be
placed for hearing before the same Judge, if he is
available for orders. Such a course is appropriate and
desirable and rooted in sound principle.
8.3 In State of Maharashtra v. Captain Buddhikota
Subha Rao (supra), following the ratio of Shahzad Hasan
(supra), the Supreme court, dealing with a case where
successive bail applications preferred by the accused
were rejected and all other pending bail applications
were also rejected by a common order made by the learned
Single Judge except one application for enlargement on
bail on medical grounds, which was not brought to the
notice of that learned Single Judge and was granted two
days thereafter by another Judge, the Supreme Court held
that the order granting bail was not proper and that,
judicial discipline, propriety and comity demanded that
the order granting bail should not have been passed
reversing all earlier orders including the one rendered
by the Single Judge of the same High Court only a couple
of days before. In paragraph 7 of the judgement, the
Supreme Court held:
"In such a situation, the proper course, we
think, is to direct the matter be placed before
the same learned judge who disposed of the
earlier applications. Such a practice or
convention would prevent abuse of the process of
court inasmuch as it will prevent an impression
being created that a litigant is avoiding or
selecting a court to secure an order to his
liking. Such a practice would also discourage
the filing of successive bail applications
without change of circumstances. Such a practice
if adopted would be conducive to judicial
discipline and would also save the Court's time
as a judge familiar with the facts would be able
to dispose of the subsequent application with
despatch. It will also result in consistency.
In this view that we take we are fortified by the
observations of this Court in paragraph 5 of the
judgement in Shahzad Hasan Khan v. Ishtiaq Hasan
Khan, (1987)2 SCC 684 : (AIR 1987 SC 1613)."
(emphasis added).
8.4 It is at once clear that the above decision in
Buddhikota case did not rest on any practice of High
Court of Bombay, but the Supreme Court laid down that the
proper course to be followed in such cases was to direct
that the subsequent application be placed before the same
learned Judge who disposed of the earlier applications.
8.5 The ratio of the above two decisions of the
Supreme Court is in no way affected by the subsequent
decision of the Supreme Court in Mehboob Shaikh (supra).
The Court's observations in paragraph 13 of the judgement
were in the context of its earlier decision in Harjeet
Singh v. State of Punjab, reported in AIR 2002 SC 281 in
which it was held that there was a longstanding
convention and requirement of judicial discipline that
subsequent applications for grant or cancellation of bail
should be placed before the same learned Judge who had
passed the earlier order. The Supreme Court held in
Mehboob Shaikh's case that this certainly was a desirable
course, but the party making a grievance that the course
is not followed has to indicate as to in what manner he
was prejudiced. The Supreme Court held:
"But where the cancellation is sought for on
grounds different from those which existed at the
time of granting bail, the conventional practice
of placing the matter before the same learned
Judge need not be followed as if it is a
statutory requirement." (emphasis added).
8.6 The observations made by the Supreme Court in
Mehboob's case were not at all in the context of the
decisions in Shahzad and Buddhikota cases which were not
even cited. We hold that the ratio of the decision of
the Supreme Court in Shahzad and Buddhikota cases, is in
no way affected by the decision in Mehboob's case and the
contrary indication in the release orders of the learned
Single Judge in the present application and the Division
Bench in Criminal Misc. Application No. 2201 of 2004
dated 12-3-2004, is not at all warranted. The
cancellation of bail applications stands on a different
footing than the grant of bail applications and a
direction has already been issued by the Hon'ble the
Chief Justice on 16-3-2004 to notify the applications for
cancellation of bail under Sections 437(5) and 439(2) and
temporary bail applications before the appropriate Court
as per the roster, instead of placing them before the
same Bench that decided the bail application of the same
accused earlier.
9. The above Circular based on the decision of the
Supreme Court in Shahzad Hasan (supra), the ratio of
which was reiterated in Buddhikota (supra) is to be read
along with the modification made on 16-3-2004 in order to
bring the practice in consonance with the latter decision
of the Supreme Court in Mehboob Shaikh's case (supra) and
therefore, there was no valid reason for the learned
Single Judge to find fault with the practice of placing
the subsequent bail applications of the same accused
before the Bench that rejected the earlier application
merely on the ground that the stage of the earlier
application under Section 439 was different as it was
prior to the filing of the charge-sheet. Filing of the
charge-sheet may be treated as a changed circumstance
enabling the accused to file a fresh application after
rejection of his previous application under Section 439
of the Code. In absence of a change in the
circumstances, the second application would be deemed to
be seeking a review of the earlier order which is not
permissible in criminal law as held by the Supreme Court
in State of M.P. v. Kajad, reported in (2001)7 SCC 673.
9.1 Even in an application made under Section 439 of
the Code prior to the filing of the charge-sheet, the
Court may have passed the order relying on police papers
including the statements tendered before the Court and
referred to on behalf of the accused. It has been held
in J.S.Bhatt v. State of Gujarat, reported in (1992)2
G.L.R.832 that in such an event, "it may not be open for
the accused to contend on a future date that he had no
fair opportunity to make out a case for bail". The Court
held in paragraph 9 of the judgement:
"If the initial bail application which is not
based on the charge-sheet is rejected and if
another bail application is submitted after the
charge-sheet is filed relying on that
charge-sheet, it cannot be said that it is
successive bail application based on same
material on which earlier application was based,
but it is a successive application with entire
material which was not available to the accused
earlier." (emphasis added).
9.2 The contention raised on behalf of the accused
and by the interveners that the application made after
the filing of the charge-sheet is not a successive
application by placing reliance on the decision in
J.S.Bhatt's case (supra) is, therefore, misconceived.
Even when change of circumstances by different stages of
the criminal investigation and proceedings against a
person accused of an offence who is in custody takes
place, the nature of applications made under Section 439
remains the same and even when he becomes entitled to
make a bail application again, such application is
required to be placed before the Judge who rejected his
earlier application which was also under Section 439 for
the same relief. Thus, the subsequent applications under
Section 439 made by the accused, whose earlier
application under Section 439 was rejected, will have to
be placed before the same Judge, who rejected the earlier
application, on the ratio of the decisions of the Supreme
Court in Shahzad and Buddhikota cases as adopted by the
Circular which cannot be termed as having been "based on
misconception of law laid down by the Apex Court", as
observed by the learned Single Judge.
10. Even in cases where the earlier application for
anticipatory bail filed under Section 438 of the Code of
Criminal Procedure is rejected, similar repeated
application under Section 438 will have to be placed
before the same Bench that passed the earlier order.
However, an application under Section 439, made after the
rejection of an application under Section 438, would lie
only when the person is accused of an offence and is in
custody which is entirely a different situation. An
application under Section 438 is filed by a person on an
apprehension of arrest on an accusation of a non-bailable
offence, while an application under Section 439 has to be
made where a person is already accused of a non-bailable
offence and is in custody. Therefore, the application
under Section 439 would be of a different nature and will
not be a "successive" or "repeated" application in the
context of the earlier application made under Section 438
by the same person. The decisions of the Apex Court in
Shahzad Khan and Buddhikota (supra) do not require
subsequent bail applications under Section 439 to be
placed before the Bench that had decided earlier
application for anticipatory bail of the same applicant
under Section 438 of the Code.
11. The applications under Section 439(2) are now not
being placed before the same Bench that granted bail in
view of the latter direction of the Hon'ble the Chief
Justice issued on 16-3-2004 on the basis of the decision
of the Supreme Court in Mehboob Shaikh's case (supra) and
the aforesaid Circular stands modified accordingly, as
noted above. There is, therefore, no flaw in the
practice adopted by the Circular on the basis of the
decisions of the Apex Court in Shahzad Khan and
Buddhikota (supra), as modified on the basis of the
decision of Mehboob Shaikh (supra) in respect of the
subsequent applications for cancellation under Section
437(5) and 439(2) and for temporary bail. The question
referred to us, therefore, stands answered accordingly.
12. We may add that it is the exclusive power of the
Hon'ble the Chief Justice to assign work to different
Benches constituted by him. It is clear from the
provisions of Rules 121 and 122 of the Gujarat High Court
Rules, 1993 that, notwithstanding anything contained in
the sitting list (i.e. the roster), the Chief Justice
may, if he deems fit, constitute special Benches, or
change the sittings during the term. It has never been
in dispute that the Chief Justice assigns the work while
constituting the Benches and this is entirely his
prerogative under the Rules. As held by the Supreme
Court in State of Rajasthan v. Prakash Chand, reported
in (1998)1 SCC 1, the administrative control of the High
Court vests in the Chief Justice alone and it is his
prerogative to distribute business of the High Court both
judicial and administrative. The Chief Justice is the
master of the roster. He alone has the right and power
to decide how the Benches of the High Court are to be
constituted; which Judge is to sit alone and which cases
he can and is required to hear as also which Judges shall
constitute Division Bench and what work those Benches
shall do. The Puisne Judges can only do that work which
is allotted to them by the Chief Justice or under his
directions.
13. The Supreme Court, in Buddhikota case (supra), as
noted above, held that the proper course where subsequent
bail application is made was to direct that the matter be
placed before the same learned Judge who disposed of the
earlier application. It was held that "such a practice
if adopted would be conducive to judicial discipline
....... ". This clearly warranted adoption of such
practice as a norm commended by the Supreme Court by
issuing general orders in the form of a Circular so that
the law of the land as declared by the Apex Court on this
aspect was uniformly followed. A provision on the basis
of this norm that subsequent bail applications be placed
before the same Judge who rejected the earlier bail
application would amount to assignment of such work by a
general order to the Hon'ble Judges who have decided the
earlier bail applications, along with the work assigned
in the current roster. The assignment of work by general
orders made by the Chief Justice on the basis of the
norms indicated by the Supreme Court has the same
efficacy as that of specific assignment of other work in
the current roster. The validity of the said norms
adopted was never in issue before the Court releasing the
present bail application from its board, nor was there
any lack of jurisdiction to hear the application.
Refusing to entertain such cases which are required to be
heard by the Judge by virtue of the general orders
reflected in the Circulars issued on the directions of
the Chief Justice would stand on the same footing as
refusal to do the work assigned in the roster,
undermining the right and power of the Chief Justice to
distribute the judicial business which is his exclusive
prerogative. The exercise of power by the Chief Justice
to assign business by general orders reflected in the
Circular, as modified, was clearly warranted by the
decisions of the Apex Court, and could not, therefore,
have been questioned.
The Reference made under the orders of the
Hon'ble the Chief Justice stands answered accordingly.
This application may now be placed before the appropriate
Bench for disposal on merits, as may be directed by
Hon'ble the Chief Justice.
[R.K.ABICHANDANI, J.]
[C.K.BUCH, J.]
[D.H.WAGHELA, J.]
parmar*
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