.JAGMOHAN BAHL & ANR.versusSTATE (NCT OF DELHI) & ANR.

                    [2014] 12 S.C.R. 543

                 .JAGMOHAN BAHL & ANR.                               A
                               v.
             STATE (NCT OF DELHI) & ANR.
            (Criminal Appeal No. 2335 of 2,014)
                    DECEMBER 18, 2014
                                                                     B
     [DIPAK MISRA AND UDAY UMESH LALIT, JJ.]

     Code of Criminal Procedure, 1973: ss.439(2), 438 "'.' Bail
application - First bail application dismissed by Additional
Sessions Judge - Second bail application allowed by another          C
Additional Sessions Judge who had not dealt with the first bail
application - Held: The Judge, who has declined to entertain
the prayer for grant of bail, if available, should hear the second
bail application or the successive bail applications - It is in
consonance with the principle of judicial decorum, discipline        D
and propriety - Unless such principle is adhered to, there is
enormous possibility of forum-shopping which has no sanction
in law - Forum shopping - Judicial Decorum - Bail.

     Disposing of the appeal, the Court
                                                                     E
    HELD: 1. The High Court held that the Second Judge
could not have entertained the bail application especially
when the earlier Judge was available. The Additional
Sessions Judge who has dealt with the matter on the first
occasion, had neither been transferred from the said                 F
court, nor had he become incapacitated to come to court
nor was he absent for a considerable length of time. The
High Court took exception to the fact that the application
was moved when the second Judge was allotted the
roaster to deal with the application under Section 438               G
Cr.P.C. [Para 7) [548-8-C]

    2. Unscrupulous litigants are not to be allowed even
to remotely entertain the idea that they can engage in
                               543                                   H
    544     SUPREME COURT REPORTS             [2014] 12 S.C.R.

 A forum-shopping, depreciable conduct in the field of law.
    In the instant case, when the Additional Sessions Judge-
    6 had declined to grant the bail application, the next
    Additional Sessions Judge-04 should have been well
    advised to place the matter before the same Judge.
 B However, it is the duty of the prosecution to bring it to
    the notice of the concerned Judge that such an
    application was rejected earlier by a different Judge and
    he was available. In the entire adjudicatory process, the
    whole system has to be involved. The matter would be
 c different ifa Judge has demitted the office or has been
    transferred. Similarly, in the trial court, the matter would
    stand on a different footing, if the Presiding Officer has
  · been superannuated or transferred. The fundamental
    concept is, if the Judge is available, the matter should be
    heard by him. That will sustain the faith of the people in
.D the system and nobody would pave the path of forum-
    shopping, which is decryable in law. The natural corollary
    would have been to set aside the order as it has been
    passed in an illegal manner. However, in the instant case,
 E the allegations were quite different. The FIR was instituted
    under Section 420/34 IPe and relates to execution of an
    agreement. In such a situation, the appellants are directed
    to move a fresh application for .. bail under Section 438
    erPC. [Paras 14, 15 and 16] [551-G-H; 552-A-F]

F      Ash Mohammad V: Shiv Raj Singh @ Lalla Babu & Anr.
  (2012) 9 SCC 446: 2012 (7) SCR 584; Shahzad Hasan Khan
  V. lshtiaq Hasan Khan and Anr. (1987) 2 sec 684: 1987 (3)
  SCR 34; State of Maharashtra V. Captain Buddhikota Subha
  Rao (1989) Supp (2) sec 605: 1989 (1) Suppl. SCR 315;
G M. Jagan Mohan Rao v. P. V. Mohan Rao (2010) 15 SCC
  491; Harjit Singh V. State of Punjab (2002) 1 SCC 649: 2001
  (5) Suppl. SCR 494; ·Vikramjit Singh V. State of Madhya
  Pradesh AIR 1992 SC 474; Chetak Construction Ltd. V. Om
  Prakash and Ors. (1998) 4 SCC 577: 1998 (2) SCR 1016;
H Tamilnad Mercantile Bank Shareholders Welfare Association
   JAGMOHAN BAHL v. STATE (NCT OF DELHI)                 545

V. S. C. Sekar and others (2009) 2 SCC 784: 2008 (17)            A
SCR 85 - relied on.
                      Case Law Reference:
    2012 (7) SCR 584              relied on        Para 8
                                                                 B
    1987 (3) SCR 34               relied on        Para 9
    1989 (1) Suppl. SCR 315       relied on        Para. 10

    (2010) 15 sec. 491            relied on        Para 11
    2001(5) Suppl. SCR 494        ~elied on        Para 11       c
    AIR 1992 SC 474               relied on        Para 12
    1998 (2) SCR 1016             relied on        Para 13
    2008 (17) SCR 85              relied on        Para 13       D
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 2335 of 2014.

    From the Judgment & Order dated 01.10.2014 of the High
Court of Delhi at New Delhi in Crl. M.C. No. 3202 of 2014.       E

    Parag P. Tripathi, Arvind Verma, Neeraj Chaudhari,
Ravjyot Singh, Rajesh lnamdar, Gautam Talukar for the
Appellants.

    Pinki Anand, ASG, Prabal Bagchi, P.K. Dey, Rekha             F
Pandey, Kritika Sachdeva, D.S. Mahra, Sanjeev Kumar, M.K.
Naik, Sudhansu Palo, Rajesh Singh Chauhan for the
Respondents.                                ·

    The Judgment of the Court was delivered by                   G
      DIPAK MISRA, J. 1. The present appeal, by special leave,
is directed against the order dated 01.10.2014 passed by the
High Court in CRLMC No. 3202/2014, whereby the learned
Single Judge, in exercise of the jurisdiction under Section
                                                                 H
    546      SUPREME COURT REPORTS                [2014] 12 S.C.R.


A 439(2) read with Section 482 of the Code of Criminal
    Procedure, 1973 (CrPC), has set aside the order dated
   20.06.2014 passed by the learned Additional Sessions Judge,
   Sake! Courts, Delhi, who had granted the benefit of anticipatory
   bail to the appellants in FIR No. 92/2014 instituted for the
B offence punishable under Section 420/34 IPC, registered at
  · P.S. Defence Colony, New Delhi. ·

         2. The factual matrix that is required to be exposited for
    the purpose of disposal of the present appeal is that the 2nd
    respondent filed an FIR against the present appellants alleging
C   that both of them had conspired against him and in furtherance
    of the said conspiracy, they had subjected him to cheating,
    criminal breach of trust and have misappropriated the money.
    As alleged in the FIR, the appellants allured the said
    respondent to buy a property situated at C-93, Defence Colony,
D   New Delhi, for which he had paid an advance of
    Rs.1,50,00,000/- (Rupees one crore fifty lakhs). As the narration
    would unfurl, it was apprised by the appellants that the property
    comprising entire basement floor and entire ground floor with
    one servant quarter with servant's W.C. and with two car parking
E   space, with structure standing thereon admeasuring 401 sq.
    yards along with proportionate undivided, indivisible and
    impartible share of ownership rights in the land underneath
    would be sold to him and he will be delivered vacant peaceful
    physical possession. There are series of other allegations which
F   would show that on the basis of oral agreement, certain amount
    was paid and on 30.04.2013, an agreement to sell was duly
    executed between the parties. It is also the case of the
    informant that remaining part of the amount i.e. Rs.4,50,00,000/
    - (Rupees four crores fifty lakhs) was to be paid to the accused
G   persons at the time of registration of the sale deed on or before
    26.10.2013;
        3. As the allegations proceed, after receipt of the amount,
  .the appellant$ disputed the amount and delayed the execution
   of the sale deed. On an enquiry being made; the 2nd
H respondenlcame to know that the appellants had entered into
    JAGMOHAN BAHL v. STATE (NCT OF DELHI)                       547
              [DIPAK MISRA, J.]
an agreement to sell the said property to a third person. That          A
was the foundation to lodge the FIR.

     4. After the lodgment of the FIR, the appellants moved an
application under Section 438. CrPC for grant of anticipatory
bail which was dismissed by the. learned Additional Sessions · 8
Judge-6, South East, Saket Courts, New Delhi vide order dated
26.05.2014. Thereafter, the appellants after expiry of three
weeks filed second application under Section 438 CrPC which
came to be considered by the learned Additional Sessions
Judge-04 (Special Judge, NDPS), South East, New Delhi, who C
allowed the same by the impugned order dated 20.06.2014.
The aforesaid order was assailed before the High Court on two
grounds, first the accused persons had misrepresented the facts
and that there was no change in the circumstances; and second,
the application for grant of anticipatory bail could not have been
entertained by the learned Additional Sessions Judge-04, for D
the first application was rejected by the learned Additional
Sessions Judge-6, South East Saket.

      5. The High Court referred to certain decisions with regard
·to the parameters for grant of anticipatory bail, absence of           E
 change of circumstances, conduct of the accused persons in
 the manner in which they had executed the agreement for sale,
 the need for custodial interrogation and the impropriety in view
 of the fact that another court had entertained the application for
 consideration despite the fact that the first application was          F
 earlier rejected by another court and analyzing these aspects,
 set aside the order for grant of bail. It is necessary to state here
 that the High Court has drawn a distinction between an order
 passed which is perverse in nature inviting the wrath of
 impropriety and an order cancelling order of bail due to               G
 supervening circumstances after the grant of bail.

     6. We have heard Mr. Parag P. Tripathi, learned senior
 counsel for the appellants, Ms. Pinki Anand, learned ASG for
 the State of NCT of Delhi and Mr. Sanjeev Kumar, learned
 counsel for the informant, the 2nd respondent.                         H
                                                      •




      548       SUPREME COURT REPORTS                     (2014] 12 S.C.R.


· A      7. On a perusal of the order passed by the High Court, we
   find that it has felt disturbed that the second application under
   Section 438 CrPC was allowed by another Additional Sessions
   Judge who had not dealt with the first application. It has opined
   !_hat the Second Judge could not have entertained· the bail .
 B application especially when the earlier Judge was available. To
   elaborate, the Additional Sessions Judge who has dealt with
   the matter on the first occasion, had neither been transferred
   from the said court, nor had he become incapacitated to. come
   to court nor was he .absent for a considerable length of time.
 c As it appears, the High Court has taken exception to the fact
   that the application was moved when the 2nd Judge was allotted
   the roaster to deal with the application under Section 438 CrPC.

        8. To appreciate the analysis made by the High Court we
   have bestowed our anxious consideration and perused the
 D order impugned. As far as the distinction drawn by the High
   Court between the categories of situation!:?, namely, a bail order
   passed in a perverse manner excluding the relevant matters
   and considering the extraneous matters which deserves to be
   lancinated in exercise of supervisory jurisdiction to nullify the
 E same and the other, which is fundamentally and absolutely
   situation based for cancelling the order of bail because of
   violation of the terms and conditions of the order granting bail
   ana other supervening circumstances, the .distinction gets
   support from the recent decisions rendered in Ash
 F Mohammad V. Shiv Raj Singh @ Lalla Babu & Anr. 1 and
   Neeru Yadav v. State of U.P. and Anothe~ which have taken
   note of number of earlier authorities. However, the said
   situation or circumstance does not arise in the case at hand.

 G        9. In this context, we may refer with profit to the decision
      in Shahzad Hasan Khan V. lshtiaq Hasan Khan and Ant"
      wherein this Court took note of the fact that three successive
      1.   (2012) s sec 446.
      2.   Crl. Appeal No. 2587 of 2014 Gudgment pronounced on 16.12.2014).
  H   3.   (1987) 2 sec 684.
     JAGMOHAN BAHL v. STATE (NCT OF DELHI)                     549
               [DIPAK MISRA, J.]
bail applications made on behalf of the accused .had been              A
rejected and disposed of finally by one Judge of the High Court.
However, another learned Judge, despite being aware of the
situation, granted bail to the respondent. In that context, this
Court held that long standing convention and judicial discipline
requires bail application to be placed before the learned Judge        B
who had passed earlier orders. Proceeding further this Court
observed:

      " ...... 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    C
      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                 D
      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 credibility of
      the court and the confidence of the other side being put in      E
      issue and there would be wastage of courts' time. Judicial
      discipline requires that such matters must be placed
      before the same Judge, if he is available for orders. Since
      Justice Kamleshwar Nath was sitting in court on June 23,
      1986 the respondent's bail application should have been          F
      placed before him for orders".

      10. In State of Maharashtra V. Captain Buddhikota
Subha Rad, the Court, placing reliance on Shahzad Hasan
Khan (supra), opined that:
                                                                       G
      "...... In such a situation the proper course, we think, is to
      direct that the matter be placed before the same learned
      Judge who disposed of the earlier applications. Such a

4.   (1989) Supp (2) sec eos.                                          H
    550        SUPREME COURT REPORTS                [2014] 12 S.C.R.


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
B         change of circumstances. Such a practice if adopted would
          be conducive to judicial disciplif'!e 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".
c       11. In M. Jagan Mohan Rao v. P. V. Mohan Rao5 , this
    Court reiterating the principle. laid down in Shahzad Hasan
    Khan (supra), Buddhikota Subhf1 Rao (supra) and Harjit
    Singh V. State of Punjab6 held as under:

D         "In view of the principle laid down by this Court, since the
          learned Judge who had refused bail in the first instance
          was available, the matter should have been placed before
          him. This Court tias indicated that such cases of
          successive bail. applications should be placed before the
E         same Judge who had refused bail in the first instance,
          unless that Judge is not available".

        12. In this context, we may refer to a two-Judge Bench
   decision in Vikramjit Singh V. State of Madhya Pradesh',
   wherein bail granted by one Judge of the High Court was
F cancelled by another Judge. This Court, on being moved by the
   accused, opined that such a practice is not consistent with
 . judicial discipline which is expected to be maintained by courts.
   Proceeding further, the Court obse_rved:-

G         "..... Otherwise, a party aggrieved by an order passed by
          one Bench of the High Court would be tempted to attempt

    5.   (2010) 15 sec 491.
    s.   (2002) 1 sec 649.
H   7.   AIR 1992 SC 474.
     JAGMOHAN BAHL v. STATE (NCT OF DELHI)                   551
               [DIPAK MISRA, J.]
     to get the matter re-opened before another Bench, and A
     there would not be any end to sue~ 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 assuring the binding nature of
     an· order which becomes final, and the faith of the people · B
     in the judiciary."

      13. On a perusal of the aforesaid authorities, if is clear to
us that the learned Judge, who has declined to entertain the
prayer for grant of bail, if available, should hear the second bail. C
application or the successive bail applications. It is in
consonance with the principle of judicial decorum, discipline
and propriety. Needless to say, unless such principle is adhered
to, there is enormous possibility of forum-shopping which has
no sanction in law .and definitely, has no sanctity. If the same is
allowed to prevail, it is likely to usher in anarchy, whim and D
caprice and in the ultimate eventuate shake the faith in the
adjudicating system. This cannot be allowed to be encouraged.
In this regard we may refer to the pronouncement in Chetak
Construction Ltd. V. Om Prakash and others;8 wherein this
Court has observed that.a litigant cannot be permitted "choice" E
of the "forum" and every attempt at "forum-shopping" must be
crµshed with a heavy hand. In Tamilnad Mercantile Bank
Shareholders Welfare Association V. S.C. Sekar and
others9 , it has been observed that the superior courts of this ·
country must discourage forum-shopping.                              F

     14. Though the said decisions were rendered in different
context, the principle stated therein is applicable to the case
of present nature. Unscrupulous litigants are not to be allowed
even to remotely entertain the idea that they can engage in
forum-shopping, depreciable conduct in the field of law.            G

      15. In the instant case, when the Additional Sessions

a.   (1998) 4 sec 577.
9.   (2009) 2 sec 784.                                              H
    552       SUPREME COURT REPORTS              (2014] 12 S.C.R.


A Judge-6 had declined to grant the bail application, the next ·
  Additional Sessions Judge-04 should have been well advised
  to place the matter before the same Judge. However, it is the
  duty of the prosecution to bring it to the notice of the concerned
  Judge that such a.n application was rejected earlier·by a
B different Judge and he was available. II") the entire adjudicatory
  process', the whole system has to be involved. The matter would
  be different if a Judge has demitted the office or has been
  transferred. Similarly, in the trial court, the matter would stand
  on a different footing, if the Presiding Officer has been
C superannuated or transferred. The fundamental concept is, if
  the Judge is available, the matter should be heard by him. That
  will sustain the faith of the people in the system and nobody
  would pave the path of forum-shopping, which is decryable in
  law.
D
        16. Having said what we have stated hereinabove, the
  natural corollary would have been to set aside the order as it
  has been passed in an illegal manner. Ordinarily we would have
  issued that direction but, a significant one, in the present case,
  the allegations,. as we find, are quite different. The FIR was
E instituted under Section 420/34 IPC and relates to execution
  of an agreement. In such a situation, we do not intend to set
  aside the order and direct the appellants to move a fresh ·
  application for bail under Section 438 CrPC. We are only
  inclined to direct that the bail order granted in their favour shall
F remain in force and the ·appellants shall abide by the terms and
  conditions imposed by the Court and would not deviate from
  any of the conditions.

       17. Consequently, we dispose of the appeal concurring
G with the reasoning given by the High Court, but in the facts and
  circumstances of the case, we set aside the direction cancelling
  the order of bail.

    Devika Gujral                                  Appeal disposed of.

H