STATE OF MAHARASHTRAversusCAPTAIN BUDDHIKOTA SUBHA RAO

                 STATE OF MAHARASHTRA
                                                                               A
                           v.
             CAPTAIN BUDDHIKOTA SUBHA RAO

                        SEPTEMBER 29, 1989

             [A.M. AHMADI AND K.N. SAIKIA, JJ.)                                B

      Constitution of {ndia, 1950: Article 136-Court does not interfere
with order granting bail-Court will interfere when judicial discipline is
sacrified at the alter of judicial discretion.

      The respondent, a retired Naval Officer, was apprehended at the
Bombay International Airport when he was about to take a flight to
                                                                               c
New York. On search of his luggage certain highly sensitive documents
were found, and he was arrested for breach of the provisions of the
Official Secrets Act, 1923 and the Atomic Energy Act, 1962.

      The respondent filed a number of applications for being released D
on bail inter alia on medical grounds. This batch of applications were
rejected by Puranik, J. The attention of Puranik, J. was, however, not
drawn to the pendency of one more such application, in which the
respondent had prayed for grant of bail to facilitate yogic exercises
under expert guidance at his residence. The respondent had sought
precisely the same relief in an earlier application which had been E
rejected by Puranik, J. Two days after the rejection of the group of bail
applications l!y Puranik, J., the pending application was disposed of by
Suresh J., who directed that the respondent be enlarged on bail, on
certain conditions which amounted to virtual house arrest.
     Before this Court the appellant-State has assailed the l'ropriety of
                                                                               F
the order granting bail passed by Suresh, J. just two· days after
Puranik, J. bad rejected the batch of bail applications. On the other
hand, it was contended on behalf of the respodeni that this Court should
refrain from _exercising jurisdiction under Article 136 to cancel bail
granted by the High Court.

      Allowing the appeal, this Court,                                         G

       HELD: (1) It is true that ordinarily this Court does not interfere
with an order granting bail; but in the facts of this case the Court feels
that judicial discipline will be sacrificed at the alter of judicial discre·
tion if the Court refused to exercise its jurisdiction under Article 136 of
                                                                               H
the Constitution. [322C)
                                    315
    316         SUPREME COURT REPORTS                 [1989] Supp. 1 S.C.R.

          (2) When the batch of bail applications were put up before
A
    Puranik, J., his attention was not drawn to the pendency of one more
    such application. Even if the said application was filed after the hearing
    started before Puranik, J., the learned Judge could have been told
    about its pendency before he rendered his decision. This conduct of the
    respondent has given rise to the argument that the respondent desired
B   to keep the question regarding his enlargement on bail alive,, [320B-C]

          (3) What is important to realise is that in the bail application
    before Suresh, J. the respondent made an identical' request made
    earlier in an application placed before Puranik, J. Once that applica-
    tion was rejected there was no question of granting a similar prayer.
    That is virtually overuling the earlier decision without there being a
C   change in the fact-situation, which would mean a substantial change
    having a direct impact on the earlier decision and not merely cosmetic
    changes which are of little or no consequence. [3210-E]

          (4) Judicial discipline, propriety and comity demanded that the
D 'impugned order should not have been passed reversing all earlier
    orders including the one rendered by Puranik, J., only a couple of
    days before, in the absence of any substantial change in the fact-
    situation. [321F]

          (5) In such a situation the proper course is to direct that the
E   matter be placed before the same learned Judge who disposed of the
    earlier applications. Such a practice or convention would prevent an
    impression being created that a litigant is avoiding or selecting a court
    to secure an order of his liking.

          Shahzad Hasan Khan v.lshtiaq Hasan Khan, [1987] 2 SCC 684,
F   referred to.

         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 603 of 1989.

      From the Judgment and Order dated 8.6.1989 of the Bombay High
G Court in Crl. Application No. 995 of 1989.

          B.R. Handa and A.M. Khanwilkar for the Appellant.

         Ram Jethmalani, P.K. Dey, Ms. Rani Jethmalani (N.P.) and
    D. M. N argolkar for the Respondents.
H
          The Judgment of the Court was delivered by
          STATE OF MAHARASHTRA v. B.S. RAO {AHMADI, J.]               317

      AHMADI, J. Special leave granted. Heard counsel on both                A
sides. The facts leading to this appeal are as under:

       On May 30, 1988, the respondent, a retired Naval Officer of the
rank of Captain was apprehended at the Bombay International
Airport (Sahar Airport) when he was about to take the Air-India
Flight from Bombay to New York. On search of his luggage certain             B
highly sensitive documents marked secret/confidential were found. A
complaint was lodged against him for the breach of the provisions of
the Official Secrets Act, 1923 and the Atomic Energy Act, 1962. Soon
after his arrest he filed an application dated 22nd September, 19~8 for
bail. That application was rejected by the High Court on 29th
September, 1988. Thereafter, he filed a writ petition challenging the
validity of Sections 3 and 5 of the Official Secret& Act, 1923 but that      c
writ petition was dismissed by a Division Bench ?f the Bombay High
Court on 8th December, 1988. In the meantime, he had preferred an
application dated 21st November, 1988 for transfer of his case to
another learned Judge and for grant of bail. While granting the prayer
for transfer the Division Bench refused to enlarge the respondent on         D
bail by its order dated 19th December, 1988. Soon thereafter on 18th
January, 1989, the respondent filed the third application for bail which
too was rejected by Suresh, J. Having thus failed to secure enlarge-
ment on bail the respondent approached the learned Sessions Judge,
Bombay for a direction to the jail authorities that he be produced
before the Head of the Orthopaedic Department of J .J. Hospital as he        E
had some spinal pain. The respondent also moved a separate applica-
tion for being admitted to the Naval Hospital. The learned Sessions
Judge acceded to his request and got him examined by Dr. Donga-
onkar who submitted his report on 3rd February, 1989. On 10th
February 1989, the respondent moved another application complain-
ing of violation of Court's order and for enlargement on bail. This was      F
followed by yet another application for bail dated 16th February, 1989
and in the alternative for a direction to admit him to a suitable hospital
where be may be served meals cooked at his home. On the said appli-
cation certain directions were given and the respondent was shifted to
the general ward of G. T. Hospital, Bombay. The Trial Court framed
charges against the respondent on 27th February, 1989. On 24th April,
 1989, the respondent filed yet another application for grant. of bail on
medical grounds and in the alternative for being admitted to a ho~pital
                                                               '
or any other place where he can conveniently receive instructions       in
yogic ei<ercises. All his pending applications made for bail' etc. were
rejected by Puranik, J. by a common order dated 6th June, 1989,
except Criminal Application No. 995 of 1989 preferred in April,.l989         H
    318         SUPREME COURT REPORTS                [.J989] Supp. 1 S.C.R.

    for enlargement on bail on medical grounds. Possibly the fact that he
A
    had referred this application was not brought to the notice of Puranik,
    J. Two days after the rejection of the group of bail applications by
    Puranik, J., application No. 995 of 1989 was disposed of by Suresh, J.,
    who directed that he be enlarged on bail for a period of two months on
    his furnishing security in the sum of Rs. 10,000 with one surety on the
B   terms and conditions catalogued at (a) to (g) of the order. The learned
    Judge felt that by permitting him to be kept in virtual house arrest the
    State's grievance that he meets visitors including mediamen and gives
    interviews at the G.T. Hospital open ward will not survive. He was
    also of the view that having regard to his spinal disorder it was neces-
    sary that he had proper facilities for yogic exercises under expert gui-
    dance. It is this order of the learned Judge that is assailed before us by
c   the State of Maharashtra.

          When this matter came up for admission before Shetty, J., dur-
    ing vacation, the learned Judge, after taking note of the fact that
    respondent was suffering from disc-prolapse for which he was treated
D   by Dr. Dongaonkar and had shown considerable improvement and
    after evaluating the opinion of Dr. Khadilkar who had certified that
    the respondent was fit to attend court, observed as under:

                "Having regard to the nature of the offences charged, the
                sickness or disability complained of, the nature of the treat-
E               ment required, the certificates given by the Doctors, I am
                of the opinion that the bail order made by the High Court
                appears to be a bit out of the ordinary."

    The learned vacation Judge then directed notice to issue and stayed
    the operation of the High Court's Judgment of 8th June, 1989. While
F   doing so, he observed that the respondent should be given necessary
    treatment of Yogic exercises in the Jail. Therefore, since the passing of
    this order on 15th June, 1989, the operation of the High Court's order
    enlarging the respondent on bail and placing him in virtual house
    arrest on the terms and conditions set out in the court's order, is
    stayed.
G
          The learned counsel for the State of Maharashtra contended that
    the learned Judge in the High Court while passing the impugned order
    of 8th June, 1989 ought to have realised that only two days before his
    colleague Puranik, J. had rejected all the pending bail applications
    (except Criminal Application No. 995/89) preferred at intervals by the
H   respondent. In Criminal Application No. 375/89 one of the prayers
         STATE OF MAHARASHTRA v. B.S. RAO [AHMADI, J.J               319

made in paragraph 7(e) was as under:
                                                                            A
           "That the applicant may, pending his illness be ordered
           and directed to be placed under house arrest and/or be
           released on bail on such terms and conditions as may be
           fit."
                                                                            B
      Puranik, J. considered this request of the respondent in para-
graph 24 of his order of 6th June, 1989 and rejected the same. Despite
the rejection of the said application No. 375 of 1989 along with a group
of applications seeking enlargement on bail and other directions,
Suresh, J. granted almost the same request only two days later while
disposing of the application No. 995/89. That is what Shetty, J.
described as 'a bit out of the ordinary' when the matter came up for
                                                                            c
hearing before this Court on 4th August, 1989 a communication
received from the respondent requesting that he be brought to Delhi
by plane to enable him to argue the matter in person was placed before
the Court. This Court while rejecting his request for being brought by
plane from Bombay to Delhi observed that he may inform the Court if         D
he desired legal aid. At the next hearing instead of informing the
Court whether he desired legal aid, he repeated his request for
personal appearance through his son which was rejected. However,
the Supreme Court Legal Aid Committee was requested to appoint an
Advo'cate to appear and argue the case on his behalf. The matter was
listed for hearing on 8th September, 1989.                                  E

      When the matter was called on for ·hearing, Mr. Jethmalani,
learned counsel for the respondent made a fervent plea that having
regard to the age and the condition of the respondent, this Court
should recall its earlier order staying the operation of the impugned
order and should refuse to exercise its jurisdiction under Article 136 of   F
the Constitution of India. The submission of Mr. Jethmalani was that
ordinarily bail should be granted to undertrials and this Court should
refrain from exercising jurisdiction under Article 136 to cancel bail
granted by the High Court. He made an endeavour to satisfy us that
even on merits this was a fit case for grant of bail notwithstanding the
fact that several bail applications, made by the respondent one after       G
another, were rejected by the High Court. We cannot accede to the
submissions of Mr. Jethmalani.

      It is evident from the facts ~lated above that after the respon-
dent's successiVe applications for bail were spurned, he requested for
being admitted to the hospital on medical grounds, that is, on the          H
     320         SUPREME COURT REPORTS                [ 1989] Supp. 1 S.C.R.

     ground that he was suffering from spinal disorder. He was first admit-
A
     ted to the J.J. Hospital and was later shifted to G.T. Hospital open
     ward on his request. After improvement to the extent of 70% and
     above was reported by Dr. Dongaonkar who treated him and on
     Dr. Khadilkar declaring him fit to attend the court, he conteded that
     he had consulted a yoga instructor who advised him a course in yogic
B    exercises to get rid of his spinal disorder. In the meantime he had filed
     a number of applications for being released on bail. This batch of
     applications were put up before Puranik, J. for disposal. The attention
     of Puranik, J. was not drawn to the pendency of one such application
     No. 995/89 till he disposed of the batch of such bail applications on 6th
     June 1989. Even if the said application was filed after the bearing
     started before Puranik, J., the learned Judge could have been told
C    about its pendency before he rendered his decision on 6th June, 1989.
     This conduct of the respondent has given rise to the argument thanhe
     respondent desired to keep the question regarding his enalrgement on
     bail alive. We have pointed out that in one of the applications No.
     375/89 be had sought precisely the same relief which came to be
D    granted by the impugned order. The question then is whether there
     was justification for releasing the respondent on bail to facilitate yogic
     exercises under expert guidance at his residence, albeit under condi-
     tions of surveillanc, even though Puranik, J. had rejected a more or
     less similar prayer only two days before? Should this Court refuse to
     exrcise jurisdiction under Article 136 of the Constitution even if it is
IE    satisfied that the jurisdiction was wrongly exercised?

          Liberty occupies a place of pride in our socio-political order.
    And who knew the value of liberty more than the founding fathers of
    our Constitution whose liberty was curtailed time and again under
    Draconian laws by the colonial rulers. That is why they provided in
JI' Article 21 of the Constitution that no person shall be deprived of bis
    personal liberty except according to procedure established by law. It
    follows therefore that the personal liberty of an individual can be
    curbed by procedure established by law. The Code of Criminal Proce-
    dure, 1973, is one such procedural law. That law permits curtailment
    of liberty of anti-social and anti-national elements. Article 22 casts
G certain obligations on the authorities in the event of arrest of an indi-
    vidual accused of the commission of a crime against society or the
    Nation. In cases of undertrials charged with the commission of an
    offence or offences the court is generally called upon to decide
    whether to release him on bail or to commit him to jail. This decision
    has ·to be made, mainly in non-bailable cases, having regard to the
H nature of the crime, the circumstances in which it was committed, the
          STATE OF MAHARASHTRA v. B.S. RAO [AHMADI, J.J                321

 background of the accused, the possibility of his jumping bail, the
                                                                              A
 impact that his release may make on the prosecution witnesses, its
 impact on society and the possibility of retribution, etc. In the present
 case the successive bail applications preferred by the respondent were
 rejected on merits having regard to the gravity of the offence alleged
 to have committed. One such application No. 36 of 1989 was rejected
 by Suresh, J. himself. Undeterred the respondent went on preferring          B
 successive applications for bail. All such pending bail applications
 were rejected by Puranik, J. by a common order on 6th June, 1989.
 Unfortunately, Puranik, J. was not aware of the penaency of yet
 another bail application No. 995/89 otherwise he would have disposed
 it of by the very same common Order. Before the ink was dry on
 Puranik, J. 's order, it was upturned by ihe impugned order. It is not as
 if the court passing the impugned order was not aware of the decision        c
 of Puranik, J.; in fact there is a reference to the same in the impugned
 order. Could this be done in the absence of new facts and changed
 circumstances? What is important to reliase is that in Criminal Appli-
 cation No. 375 of 1989, the respondent had made an indentical request
 as is obvious from ·one of the prayers (extracted earlier) made therein.     D
·once that application was rejected there was no question of granting a
 similar prayer. That is virtually overruling the earlier decision without
 there being a change in the fact-situation. And, when we speak of
 change, we mean a substantial one which has a direct impact on the
 earlier decision and not merely cosmetic changes which are of little or
 no consequence. Between the two orders there was a gap of only two           E
 days and it is nobody's case \hat during these two days drastic changes
 had taken place necessitating the release of the respondent on bail.
 Judicial discipline, propriety and comity demanded that the impugned
 order should not have been passed reversing all earlier orders includ-
 ing the one rendered by Puranik, J. only a couple of days before, in the
 absence of any substantial change in the fact-situation. In such cases it    F
 is necessary to act with restraint and circumspection so that the process
 of the Court is not abused by.a litigant and an impression does not gain
 ground that the litigant has either successfully avoided one Judge or
 selected another to secure an order which had hitherto eluded him. 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           G
 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 succes-
 sive bail applications withour..,hange of circumstances. Such a practice
 if adopted would be condusive to judicial discipline and would also          H
    322         SUPREME COURT REPORTS                [1989] Supp. 1 S.C .. R.

A 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 judgment in Shahzad
  Hasan Khan v. Ishtiaq Hasan Khan, [1987] 2 SCC 684. For the above
B reasons we are of the view that there was. no justification for passing
  the impugned order in the basence of a substantial change in the fact-
  situation. That is what prompted Shetty, J. to describe the impugned
  order as 'a bit out of the ordinary'. Judicial restraint demands that we
  say no more.

        It is true that ordinarily this Court does not interfere with an
C order granting bail but in the facts of this case we feel judicial disci-
  pline will be sacrificed at the altar of judicial discretion if we refuse to
  exercise our jurisdiction under Article 136 of the Constitution.

         In the result we allow this appeal and set aside the impugned
    order dated 8th June, 1989 granting bail to the respondent-accused.
0
    R.S.S.                                                   Appeal allowed. ·