A Full Bench of Kerala High Court in Firos Ali v. State of Kerala, has issued guidelines pertaining to filing of subsequent bail applications for same crime. The Bench comprising of Chief Justice Mohan M. Shantanagoudar, Justice Thottathil B. Radhakrishnan and Justice K.T. Sankaran clarified a few doubts that were raised in the principle that was laid down in a previous Supreme Court judgment in Shahzad Hasan Khan v. Ishtiaq Hasan Khan and followed through in subsequent cases.
According to the result of the successive apex court judgments, the judicial discipline requires that if successive bail applications are filed by the same accused in the same crime, the matter must be placed before the same judge who disposed of the earlier application, if he is available for orders, in order to
1. Prevent abuse of the process of court;
2. To prevent an impression being created that a litigant is avoiding or selecting a court to secure an order to his liking;
3. To save time of the court as a judge familiar with the facts will be able to dispose of the subsequent application/ applications effectively and as the same would be conducive to judicial discipline.
4. There cannot be any dispute that the litigants cannot be engaged in forum shopping in as much as if allowed, the same would lead to injustice and travesty of justice.
However, in this particular case, the court found it hard to rely on previously laid-down guidelines and after examination of the factual matrix of the case, the Full Bench issued fresh guidelines. Doubts such as what ‘available’ meant, what was to be done if the judge who passed orders previously is on a vacation, etc. were clarified.
The guidelines enumerated are as follows:
a) The subsequent bail application by the same accused will be entertained only if there is change of circumstance for filing such application.
b) Subsequent bail application filed by the same accused shall be heard by the learned judge who has considered and passed orders on the earlier bail application/applications in the same crime.
c) The application filed by the co-accused may be considered and ordered by any other learned judge having roster during the relevant point of time and such application need not be placed before the Judge who passed orders earlier on the application filed by another accused.
d) The subsequent bail application filed by the same accused in the same crime during Onam and Christmas holidays may wait for orders till the end of the said holidays, in case, if the learned judge who has passed orders on the earlier application is not available for orders during those holidays or if he is not designated as a vacation judge.
e) In case if the subsequent bail application is filed by the same accused during summer vacation and if the learned judge who passed earlier order is not available for orders or if he is not a designated vacation judge, the memo filed under section 8 of the High Court Act on behalf of the accused-applicant be listed before the learned Judge nominated to hear the bail applications during the summer vacation. However, the fact that an earlier bail application in the same crime is dismissed is to be brought to the notice of that vacation judge. The factor of listing the matter during summer vacation or refusing to do so can be decided by the learned vacation judge sitting in summer vacation. f) If the learned judge who passed order on the earlier bail application filed by the same accused in the same crime is sitting in the Division Bench, the subsequent application for bail may be brought to the notice of the Hon’ble the Chief Justice by the Registry so as to enable the Hon’ble the Chief Justice to make necessary arrangement to have a special sitting of the said learned Judge.
g) The counsel for the accused who is filing the subsequent application for bail in the same crime shall mention in the application seeking bail about the disposal of earlier bail application filed by this very accused. A copy of the order passed on such application earlier in respect of the same accused shall also be produced along with the second or successive bail applications.
h) It is the duty of the public prosecutor concerned to bring to the notice of the court, as far as possible, about the earlier bail application filed by the same accused as well as about any application filed by the co- accused in the same crime and the result thereof, either by filing the statement of objections or at least at the time of arguments on the bail application.
According to the result of the successive apex court judgments, the judicial discipline requires that if successive bail applications are filed by the same accused in the same crime, the matter must be placed before the same judge who disposed of the earlier application, if he is available for orders, in order to
1. Prevent abuse of the process of court;
2. To prevent an impression being created that a litigant is avoiding or selecting a court to secure an order to his liking;
3. To save time of the court as a judge familiar with the facts will be able to dispose of the subsequent application/ applications effectively and as the same would be conducive to judicial discipline.
4. There cannot be any dispute that the litigants cannot be engaged in forum shopping in as much as if allowed, the same would lead to injustice and travesty of justice.
However, in this particular case, the court found it hard to rely on previously laid-down guidelines and after examination of the factual matrix of the case, the Full Bench issued fresh guidelines. Doubts such as what ‘available’ meant, what was to be done if the judge who passed orders previously is on a vacation, etc. were clarified.
The guidelines enumerated are as follows:
a) The subsequent bail application by the same accused will be entertained only if there is change of circumstance for filing such application.
b) Subsequent bail application filed by the same accused shall be heard by the learned judge who has considered and passed orders on the earlier bail application/applications in the same crime.
c) The application filed by the co-accused may be considered and ordered by any other learned judge having roster during the relevant point of time and such application need not be placed before the Judge who passed orders earlier on the application filed by another accused.
d) The subsequent bail application filed by the same accused in the same crime during Onam and Christmas holidays may wait for orders till the end of the said holidays, in case, if the learned judge who has passed orders on the earlier application is not available for orders during those holidays or if he is not designated as a vacation judge.
e) In case if the subsequent bail application is filed by the same accused during summer vacation and if the learned judge who passed earlier order is not available for orders or if he is not a designated vacation judge, the memo filed under section 8 of the High Court Act on behalf of the accused-applicant be listed before the learned Judge nominated to hear the bail applications during the summer vacation. However, the fact that an earlier bail application in the same crime is dismissed is to be brought to the notice of that vacation judge. The factor of listing the matter during summer vacation or refusing to do so can be decided by the learned vacation judge sitting in summer vacation. f) If the learned judge who passed order on the earlier bail application filed by the same accused in the same crime is sitting in the Division Bench, the subsequent application for bail may be brought to the notice of the Hon’ble the Chief Justice by the Registry so as to enable the Hon’ble the Chief Justice to make necessary arrangement to have a special sitting of the said learned Judge.
g) The counsel for the accused who is filing the subsequent application for bail in the same crime shall mention in the application seeking bail about the disposal of earlier bail application filed by this very accused. A copy of the order passed on such application earlier in respect of the same accused shall also be produced along with the second or successive bail applications.
h) It is the duty of the public prosecutor concerned to bring to the notice of the court, as far as possible, about the earlier bail application filed by the same accused as well as about any application filed by the co- accused in the same crime and the result thereof, either by filing the statement of objections or at least at the time of arguments on the bail application.
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