Holding

Successive bail applications must be decided by the same judge, and the High Court judge erred in recalling his earlier order and granting bail without considering the evidence tampering allegations, so the bail order was set aside.

Summary

The appellant Shahzad Hasan Khan filed a criminal appeal against the Allahabad High Court's order granting bail to the accused Ishtiaq Hasan Khan in a murder case. The accused had faced three prior bail rejections by the same High Court judge, and a subsequent application was initially directed to that judge but later recalled and granted bail by a different judge on grounds of liberty and trial delay. The Supreme Court examined whether successive bail applications should be heard by the same judge, and whether the judge erred by not considering serious allegations of evidence tampering. It held that judicial discipline requires the same judge to decide successive bail applications to prevent abuse of process and conflicting orders. The Court found the High Court judge had unduly emphasized liberty without assessing the merits and evidence tampering allegations, constituting a serious error. Consequently, the bail order was set aside and the accused was ordered to be taken into custody, with the appeal allowed.

Issues considered

Whether successive bail applications in the same criminal case must be heard by the same judge.
Whether the High Court judge erred in recalling his earlier order and granting bail on the basis of liberty and trial delay.
Whether allegations of evidence tampering preclude the grant of bail.
Whether the Supreme Court can interfere with a High Court's bail order in such circumstances.

Legislation cited

Code of Criminal Procedure, 1973s. 436, s. 437, s. 438, s. 439

Subjects

bailmurderjudicial disciplinesuccessive applicationsevidence tamperingCriminal Procedure Codehigh court procedureliberty

Judgment

SHAHZAD HASAN KHAN
A
v. )-
ISHTIAQ HASAN KHAN & ANR.

APRIL 28, 1987

B [M.P. THAKKAR AND K.N. SINGH JJ.)

Criminal Procedure Code, 1973-Sections 436--439 Bail-App/i- )I.
cation for grant of-Rejected-Subsequent application-To be placed
before the same Judge who passed the earlier order-Successive app/ica- \_
tions not to be posted before different Judges.
c Practice and Procedure-Bail-Successive applications for grant
of-To be placed before the same Judge who passed the earlier order-
Desirability of.

The first respondent and three others were alleged to have
D murdered the deceased. The first respondent absconded after the
occurrence and surrendered in court later. The trial court rejected his
bail application, and three successive bail applications were rejected by
a Single Judge of the High Court. The first respondent made another
attempt in the High Court to get bail. Having regard to the judicial
discipline and prevailing practice in the High Court, another Single
E Judge of the High Court, sitting as a Vacation Judge, ordered that the
bail application be placed before the same learned Judge who· had dealt
with the case on earlier occasions. However, a few days later, the
Judge, after recalling his earlier order, granted bail on the ground that
the trial could not be commenced or completed as directed by another
Single Judge and because of the delay the accused was entitled to bail,
F and that the liberty of a citizen was involved. The complainant has tiled
an appeal to this Court against the aforesaid order.

Allowing the appeal and setting aside the order of the High Court
granting bail, this Court,

G HELD: I. Normally this Court does not interfere with bail mat-
ters and the orders of the High Court relating to grant or rejection of
bail are generally accepted to be final but some disturbing features have ~
persuaded this Court to interfere in the instant case, with the order of
the High Court. [38E)

H 2. No doubt liberty of a citizen must be zealously safeguarded by
34
SHAHZAD HASAN v. ISHTIAQ HASAN 35

court. Nonetheless, when a person is accused of a serious offence like A
murder and his successive bail applications are rejected on merit, there
being prima facie material, the prosecution is entitled to place correct
facts before the Court. Liberty is to be secured through process of law,
which is administered keeping in mind the interests of the accused, the
near and dear of the victim who lost his life and who feel helpless and
B
believe that there is no justice in the world as also the collective interest
of the community so that parties do not lose faith in the institution and
indulge in private retribution. [40C·E]

-
3. 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 c
an impression is not created that a litigant is shunning or selecting a
i. court depending on whether the court Is to his liking or not, and is
encouraged to tile 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
contlicting orders and a litigant would be pestering every Judge till he D
gets an order to his liking resulting in the credibility of the court and
the confidence of the other side being puf in issue and there would
be wastage of court's time. Judicial discipline requires that such a
matter must be placed before the same Judge, if he is available for
orders. [39B-D]
E
4. One of the salutory principles in granting bail is that the
Court should be satisfied that the accused being enlarged on bail will
not be in a position to tamper with the evidence. When allegations of
tampering of evidence are made, it is the duty of the court to satisfy
itself whether those allegations have basis and if the allegations are not
found to be concocted it would not be a proper exercise of jurisdiction in F
enlarging the accused on bail. [40FH]

5. In the jnstant case, as three successive bail applications made
on behalf of the first respondent had been rejected and finally-disposed
of by the same Judge, it would have been appropriate and desirable and
\,.- also in keeping with the prevailing practice in the High Court that the G
subsequent bail application also should have been placed before the
same Judge for disposal. In fact, being conscious of the long standing
convention and judicial discipline, the Judge himself passed an order
directing the bail application to be placed before the other Judge. The
Judge should have respected his own earlier order and ought not to H

•
36 SUPREME COURT REPORTS [1987] 3 S.C.R.

A have recalled it without the confidence of the parties in the judicial )-
process being rudely shaken. [38E-G; 39E]

6. The Judge was unduly intluenced by the concept of liberty,
disregarding the facts of the case. There were serious allegations, but
the Judge did not either consider or test the same. Objections were
B raised against hearing of the bail application on a number of grounds
and time was sought for tiling a detailed counter affidavit which was
refused. He granted bail simply on the ground that liberty was
involved, which is the case in every criminal case, more particularly in a
murder case where a citizen who, let alone losing liberty, has lost his
very lit'e, and that because of the delay in the trial the accused was
C entitled to bail. The Judge committed serious error in recallint his earlier
order and enlarging the first respondent on bail. [40E; H; 39G-H; 41A]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 464 of 1986.

D From the Judgment and Order dated 7.6.1986 of the Allahabad
High Court in Crl. Misc. C.ase No. 1320 of 1986. 'i
Anil Kumar Gupta for the Appellant.
U .R. Lalit, K.B. Rohtagi and S.K. Dhingra for the Respondents.

E The following Order of the Court was delivered.

Sepcial leave granted.

This appeal is directed against the order of the High Court of
Allahabad, Lucknow Bench, dated 7th June 1986, granting bail to
F respondent No. 1, Ishtiaq Hasan Khan. We allowed the appeal and set
aside the order of the High Court and issued directions that respon-
dent No. 1, Ishtiaq Hasan Khan be taken into custody forthwith. In
that order we had directed that the reasons will follow. Hence this
order artic!llating our reasons.

G lshtiaq Hasan Khan, respondent No. 1 and !hree others, namely, --.,;
N aseem, Shiva Kant Sharma and Asghar are facing trial for the
murder of Zaheer Hasan Khan at about 9.00 a.m. on March 3, 1985, in
a public place in Mahmood Nagar leather market. After the occurr-
ence respondent No. 1 absconded and he surrendered in court on
April 22, 1985. He applied for bail before the Sessions Judge, Luck-
H now, which was rejected. He approached the Lucknow Bench of the
SHAHZAD HASAN v. ISHTIAQ HASAN 37

High Court of Allahabad with an application for grant of bail. The A
application was opposed by the complainant and as well as by the
Public Prosecutor. Justice Kamleshwar Nath by his order dated
September 18, 1985 refused to enlarge the respondent on bail and
rejected the bail application. After a lapse of two months' time respon-
dent No. 1, Ishtiaq Hasan Khan filed another bail application before
the High Court. That application was placed before Justice Kamlesh- B
'
J. war Nath who rejected the same by his order dated January 21, 1986.
Within a few days thereafter respondent No. 1 made another applica-
_j tion before Justice P. Dayal. The learned Judge having regard to the
judicial discipline and prevailing practice in the High Court, directed
that the bail application be placed before Justice Kamleshwar Nath
who had passed orders rejecting earlier applications for bail. In c
pursuance of that order the bail application was placed before Justice
Kamleshwar Nath. Meanwhile, respondent No. 1 made two futile
i attempts before the trial court for the grant of bail even though his
application for bail was pending before the High Court. On March 18,
1986 Justice Kamleshwar Nath was sitting in a Division Bench and the
respondent's counsel appeared before him seeking his permission for D
listing the bail application before him. The learned Judge passed an
'( order releasing the bail application, but it appears that inspite of that
order the bail application was not listed before any other Judge,
instead it again came up for orders before Justice Kamleshwar Nath on
March 24, 1986. On that date counsel for the respondent No. 1 for
some unknown reasons did not press the bail application, on his re- E

- ·~
quest the application was dismissed as withdrawn.

Meanwhile, one of the accused Shiva Kant Sharma filed an appli-
cation for transfer of the trial from the court of the First Additional
...,.. . Sessions Judge to any other court. The complainant had also filed an
application in the High Court for the cancellation of bail granted to F
Shiva Kant Shanna. Respondent No. 1 also made an application from
jail for the transfer of the case. All the three miscellaneous cases were
heard by D.N. Jha, J. By a composite order dated 10.12.1985, Justice

:\ .\
D .N. Jha refused to transfer the case and he further refused to cancel
the bail granted to Shiva Kant Shanna. The learned Judge, however,
made observations that the trial should be concluded expeditiously G
~, and if necessary the court should hold day-to-day trial to conclude the
same at an early date. In pursuance to the order of Justice D.N. Jha,
the First Additional Sessions Judge fixed several dates for the trial of
/
the case but the accused persons obtained adjournments on one pre-
text or the other with the result the trial could not be commenced or
completed within three months as desired by Justice D.N. Jha. Mean- H
38 SUPREME COURT REPORTS [1987] 3 S.C.R.
I
A while, the respondent No. 1 made another application on June 3, 1986 J-.
before Justice D.S. Bajpai Vacation Judge for grant of bail. The
learned Judge directed that the application be placed before Justice
Kamleshwar Nath who was sitting as a Vacation Judge with effect from
23rd June, 1986. Two days later, another application was made on
behalf of respondent No. 1 before Justice D.S. Bajpai for recalling his
B order dated June 3, 1986, the application was directed to be placed
before the Court on June 6, 1986. On June 6, 1986 when the applica-
tion was taken up the Assistant Government Advocate appearing fo:·
the prosecution and the complainant's advocate both appeared and
filed their appearance. Justice D.S. Bajpai directed the application to
be listed on June 7, 1986. On that date the complainant's counsel filed
application raising objections against the hearing of the bail applica-
c tion on a number of grounds and he further sought three days time to
file detailed counter affidavit in reply to the allegations made in bail
application. Justice D.S. Bajpai, did not grant time. Instead he heard
the arguments, he recalled his order dated June 3, 1986 for placing the
matter before Kamleshwar Nath and enlarged the respondent No. 1 on
D bail. Aggrieved, Shahzad Hasan Khan the complainant, who is the son
of the deceased Zaheer Hasan Khan, has approached this court by
means of this appeal.

Normally this court does not interfere with bail matters and the
orders of the High Court are generally accepted to be final relating to
E grant or rejection of bail. In this case, however, there are some dis-
turbing features which have persuaded us to interfere with the order
of the High Court. The matrix of facts detailed above would show that
three successive bail applications made on behalf of respondent No. 1
had been rejected and disposed of finally by Justice Kamleshwar Nath.
In that view it would have been appropriate and desirable and also ih
F keeping with the prevailing praciice in the High Court that the bail
application which was filed in June 1986 should have been placed
before Justice Kamleshwar Nath for disposal. In fact on June 3, 1986,
Justice D.S. Bajpai being conscious of this practice and judicial disci-
pline himself passed order directing the bail application to be placed
before Justice Kamleshwar Nath but subsequently on 7th June 1986 he
G recalled his order. We are of the opinion that Justice D.S. Bajpai.
should not have recalled his order dated June 3, 1986 keeping in view
the judicial discipline and the prevailing practice in the High Court.
Justice D.S. Bajpai was persuaded to the view that Justice Kamlesh-
war Nath had passed orders on March 18, 1986, releasing the bail
application, the matter was therefore not tied up to him. However, the
H learned Judge failed to notice that when the bail application was listed
SHAHZAD HASAN v. ISHTIAQ HASAN 39

before Justice Kamleshwar Nath on March 24, 1986 the respondent A
No. 1, for reasons known to him only, withdrew his application, as a
result of which Justice Kamleshwar Nath dismissed the same as with-
drawn. This fact was eloquent enough to indicate that respondent No.
1 was keen that the bail application should not be placed before Justice
Kamleshwar Nath. Long standing convention and judicial discipline
required that respondent's bail application should have been placed B
before Justice Kamleshwar Nath who had passed earlier orders, who
was available as Vacation Judge. The convention that subsequent bail
application should be placed before the same Judge who may have
passed earlier orders has its roots in principle. It prevents abuse of
process of court in as much as an impression is not created that a
litigant is shunning or selecting a court depending on whether the court c
is to his liking or not, and is encouraged to file successive applications
without any new factor having cropped up If successive bail applica-
tions on the same subject are permitted to be disposed of by different
judges there would be conflicting orders and a litigant would be pester-
ing every judge till he gets an order to his liking resulting in the
creditibility of the court and the confidence of the other side being put D
y 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. Since Justice Kamleshwar Nath was sitting in
Court on June 23, 1986 the respondent's bail application should have
been placed before him for ord~rs. Justice D.S. Bajpai should have
respected his own order dated June 3, 1986 and that order ought not to .E
r have been recalled, without the confidence of the parties in the judicial
"' process being rudely shaken.

As regards merits, for granting the bail, the learned Judge
""'\' appears to be influenced by two factors,·firstly, he observed that the
trial could not be commenced or completed as directed by Justice D.N. F
Jha by his order dated 10th December, 1985. In this respect the com-
plainant has filed a detailed affidavit giving the details of the proceed-
ings before the trial court. On a perusal of the same it is evident that
the accused persons obtained adjournment after adjournment on one
pretext or the other and they did not allow the court to proceed with
·. the trial. On June 7, 1986 complainant's counsel had filed a written G
application seeking three days, time to file counter affidavit giving the
details of the proceedings pending before the trial court. We are cons-
trained to observe that Justice D.S. Bajpai refused to grant the prayer
and proceeded to grant bail simply on the ground that the liberty of a
ci!izen was involved which is the case in every criminal case more
particularly in a murder case where a citizen who let alone losing H
40 SUPREME COURT REPORTS [19871 3 S.C.R.

A liberty has lost his very life. Another ground for granting bail was that
trial was delayed therefore the accused was entitled to bail. This also
cannot be helped if a litigant is encouraged to make half a dozen
applications on the same point without any new factor having arisen
after the first was rejected. Had the learned Judge granted time to the
complainant for filing counter affidavit, correct facts would have been
B placed before the Court and it could have been pointed out that apart
from the inherent danger of tampering with or intimidating witnesses
and aborting case, there was also the danger to the life of the main
witnesses or to the life of the accused being endangered as experience
of life has shown to the members of the profession and the judiciary,
and in that event, the learned Judge would have been in a better
C position to ascertain facts to act judiciously. No doubt liberty of a
citizen must be zealously safeguarded by court, nonetheless when a
person is accused of a serious offence like murder and his successive
bail applications are rejected on merit there being prim a facie mate-
rial, the prosecution is entitled to place correct facts before the court.
Liberty is to be secured through process of law, which is administered
D keeping in mind the interest of the accused, the near and dear of the
victim who lost his life and who feel helpless and believe that there is
no justice in the world as also the collective interest of the community
so that parties do not lose faith in the institution and indulge in private
retribution. Learned Judge. was unduly influenced by the concept of
liberty, disregarding the facts of the case.
E
The learned judge also failed to consider the question that there ~
were serious allegations of tampering of evidence on behalf of the
accused persons. Vishram and Jagdish, two eye witnesses had filed
written applications before the trial court making serious allegations
against Masod and Masroof, brothers of respondent No. I. They
F alleged that they had been kidnapped and their signatures and thumb
impressions had been obtained on some blank papers and they were
being threatened with dire consequences and they requested the court
for being granted police protection. One of the salutory principles in
granting bail is that the court should be satisfied that the accused being
enlarged on bail will not be in a position to tamper with the eviaence.
G When allegations of tampering of evidence are made, it is the duty of
the court to satisfy itself whether those allegations have basis (they can
seldom be proved by concrete evidence) and if the allegations are not
found to be concocted it would not be a proper exercise of jurisdiction
in enlarging the accused on bail. In the instant case there were serious
allegations but the learned Judge did not either consider or test the
H 'same.
SHAHZAD HASAN •·. ISlITIAQ HASAN 41

Having regard to the facts and circumstances of this case we are A
of the opinion that the learned judge committed serious error in recal-
ling his order dated June 3, 1986 and enlarging the respondent on bail.
The occurrence took place, in the broad day light, in a busy market
place and there are a number of eye witnesses to support the case
against the respondent who was named as an assailant in the First B
Information Report. Immediately after the occurrence he could not be
traced (it was alleged that he had absconded) for more than a month,
attempts were made on his behalf to tamper \\oth evidence. In view of
these facts and cfrcumstances the respondent No. 1 was not entitled to
bail if the seriousness of the matter was realised and a judiciou~
approach was made. We had accordingly set aside the. order of the
High Court and directed that respondent No. 1, Ishtiaq Hasan Khan C
shall be taken into custody forthwith and the trial shall proceed in
accordance with law expeditiously.

N.P.V. Appeal allowed.

.