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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.]

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