First order
Order dated 21.02.2025 by Hon’ble Justice Mr. Justice Sunder Mohan
This is the second bail application. The first application was dismissed by Hon’ble Mr. Justice C.V.Karthikeyan.
Core issue
2. Hitherto, this Court has been following a procedure by which if a bail petition/anticipatory bail petition of an accused was dismissed by a particular Judge, the successive bail petition/anticipatory bail petition would be listed before the same learned Judge following the directions of the Hon’ble Supreme Court. But since a roster system was followed by this Court, the bail applications of the accused in the same FIR were listed before the roster Judge, even if the bail applications of some of the other accused were dismissed by another Judge earlier.
3. However, in Sajid v. State of Uttar Pradesh reported in 2023 SCC On-line SC 1816, the Hon’ble Supreme Court found that the bail petitions of the persons/accused in the same FIR were listed before different Judges in Allahabad High Court and that the bail petitions of similarly placed accused in the same FIR were decided differently by different learned Judges. Therefore, the Hon’ble Supreme Court directed the Registrar of High Court, Allahabad to place all the bail applications filed by the accused in the same FIR to be listed before the Same Judge. The relevant portion reads as follows:
“7. We have come across various matters from the High Court of Allahabad, wherein matters arising out of the same FIR are placed before different Judges. This leads to anomalous situation. Inasmuch as some of the learned Judges grant bail and some other Judges refuse to grant bail, even when the role attributed to the applicants is almost similar.
8. We find that it will be appropriate that all the matters pertaining to one FIR are listed before the same Judge so that there is consistency in the orders passed”.
4. The above order was subsequently reiterated in S.L.P.(Crl).No.15585 of 2023 reported in 2023 SCC Online SC 1714 [Rajpal v. State of Rajasthan] and a direction was issued to all High Courts. The relevant portion reads as follows:
“paragraphs. 4,5,6”
5. Thereafter, this position was reiterated by another Judgement of the Hon’ble Supreme Court in Kusha Duruka v. State of Odisha reported in (2024) 4 SCC 432. The relevant portion reads as follows:
21. It is further evident from the order dated 17.01.2023 vide which bail application, BLAPL NO.11709 of 2022 of the co-accused Gangesh Kumar Thakur was allowed by the High Court by Judge ‘B’. Learned State Counsel did not point out the factum of pendency of another bail application filed by the co-accused arising out of the same FIR at that stage. The concerned investigating officer must be aware of this fact but had not pointed out the same before the court.
22. In our opinion, to avoid any confusion in future it would be appropriate to mandatorily mention in the application(s) filed for grant of bail:
22.1. Details and copies of order(s) passed in the earlier bail application(s) filed by the petitioner which have been already decided.
22.2. Details of any bail application(s) filed by the petitioner, which is pending either in any court, below the court in question or the higher court, and if none is pending, a clear statement to that effect has to be made.
22.2.1. This court has already directed vide order passed in Pradhani Jani’s case (supra) that all bail applications filed by the different accused in the same FIR should be listed before the same Judge except in cases where the Judge has superannuated or has been transferred or otherwise incapacitated to hear the matter. The system needs to be followed meticulously to avoid any discrepancies in the orders.
22.2.2 In case it is mentioned on the top of the bail application or any other place which is clearly visible, that the application for bail is either first, second or third and so on, so that it is convenient for the court to appreciate the arguments in that light. If this fact is mentioned in the order, it will enable the next higher court to appreciate the arguments in that light.
22.3. The registry of the court should also annex a report generated from the system about decided or pending bail application(s) in the crime case in question. The same system needs to be followed even in the case of private complaints as all cases filed in the trial courts are assigned specific numbers (CNR No.), even if no FIR number is there.
22.4. It should be the duty of the Investigating Officer/any officer assisting the State Counsel in court to apprise him of the order(s), if any, passed by the court with reference to different bail applications or other proceedings in the same crime case. And the counsel appearing for the parties have to conduct themselves truly like officers of the Court. [emphasis supplied]
6. Since the directions issued by the Hon’ble Supreme Court in Sajid’s case [cited supra] and Rajpal’s case [cited supra], were creating problems in some High Courts where the roster system is followed, the Hon’ble Supreme Court in Shekhar Prasad Mahto @ Shekhar Kushwaha v. The Registrar General, Jharkhand High Court [WP(Crl) No.55/2025 dated 07.02.2025] had issued certain clarifications. In the said order, the Hon’ble Supreme Court held that where the roster system is followed in many High Courts, the applications filed by the accused in the same FIR would have to be placed only before the roster Judge, the relevant observations read as follows:
“ …… “
Bail applications of two different accused in same FIR may be placed before rooster judge but second bail application should be listed before the same judge
7. The above extract is self-explanatory. From the portions marked in the above extract, it would be clear that the clarification is only with regard to the listing of bail applications filed by the accused in the same FIR. Further, the clarification is only with regard to the orders passed in Sajid’s case [cited supra] and Rajpal’s case [cited supra]. Those two orders of the Hon’ble Supreme Court dealt with a situation where the bail petition of ‘A’ accused was placed before a particular judge and ‘B’ accused arising out of the same FIR and who had a similar role, was placed before another Judge and two conflicting views were taken. However, the directions that if a bail application is dismissed by a Judge, the second bail application should be listed before the same Judge, were not modified or altered. Therefore, this Court is of the view that the clarifications of the Hon’ble Supreme Court cannot be understood as one intended to clarify the well-settled directions issued by the Hon’ble Supreme Court with regard to the disposal of successive bail petitions.
Different views taken by two other Hon’ble Judges
8. However, pursuant to the clarification by the Hon’ble Supreme Court in Shekhar Prasad Mahto’s case [cited supra], two learned Judges of this Court Hon’ble Mr.Justice P.Dhanabal and Hon’ble Mr.Justice A.D.Jagadish Chandira who had dismissed the bail applications of a particular accused and the second bail petition was filed and pending consideration before them, had directed the Registry to list those petitions before the roster Judge concerned.
Successive bail applications be placed only before same judge
11. The above Judgement would clearly show that the view of the Hon’ble Supreme Court since 1989 is that successive bail applications of the same accused have to be placed only before the learned Judge who had decided the earlier bail applications. Further, a learned Judge of this Court in Manikandan v. State of Tamilnadu (Crl.OP.(MD) No.20932 of 2024 dated 06.01.2025 had held that the second application for bail must be placed before the same learned Judge by relying upon the Judgement of Hon’ble Supreme Court in Shahzad Hasan Khan v. Ishtiaq Hasan Khan reported in (1987) 2 SCC 684 and the M/s.Gati Limited’s case, extracted supra.
Reference
12. In view of the judgement of the Hon’ble Supreme Court, this Court is in respectful disagreement with the view taken by the Hon’ble Mr.Justice P. Dhanabal and Hon’ble Mr.Justice A.D.Jagadish Chandira. However, judicial discipline demands that the issue be referred to the larger Bench. Hence, this Court is referring the following question for determination by a larger Bench.
“Whether the clarification issued by the Hon’ble Supreme Court in Shekhar Prasad Mahto @ Shekhar Kushwaha v. The Registrar General, Jharkhand High Court [WP(Crl.) No.55 of 2025, decided on 07.02.2025], is only with regard to the listing of the applications filed by the accused in the same FIR or is also with regard to the listing of successive bail applications of an accused before the roster Judge, even if the Judge who dealt with the earlier application for bail/anticipatory bail is available?”
Direction to the registry
13. The Registry may place this order before the Hon’ble The Chief Justice for getting appropriate orders to list it before a Larger Bench. The Registry may also expedite the process considering the fact that the petitions relate to bail/anticipatory bail.
Judgments Cited or Relied
1. Sajid v. State of Uttar Pradesh – Citation: 2023 SCC On-line SC 1816
2. Rajpal v. State of Rajasthan – Citation: 2023 SCC Online SC 1714
3. Kusha Duruka v. State of Odisha – Citation: (2024) 4 SCC 432
4. M/s. Gati Limited v. T. Nagarajan Piramiajee – Citation: Criminal Appeal No.870 of 2019
5. Shahzad Hasan Khan v. Ishtiaq Hasan Khan – Citation: (1987) 2 SCC 684
6. State of Maharashtra v. Captain Buddhikota Subha Rao – Citation: 1989 Supp (2) SCC 605
7. Vikramjit Singh v. State of Madhya Pradesh – Citation: 1992 Supp (3) SCC 62
8. M. Jagan Mohan Rao v. P.V. Mohan Rao – Citation: (2010) 15 SCC 491
9. Jagmohan Bahl and Another v. State (NCT of Delhi) and Another – Citation: (2014) 16 SCC 501
10. Manikandan v. State of Tamilnadu – Citation: Crl.OP.(MD) No.20932 of 2024 dated 06.01.2025
11. Shekhar Prasad Mahto @ Shekhar Kushwaha v. The Registrar General, Jharkhand High Court – Citation: WP(Crl) No.55 of 2025 dated 07.02.2025
Reference order
Reference order dated: 04.03.2025 – THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM AND THE HONOURABLE MR. JUSTICE K.RAJASEKAR [Division Bench]
Background of the Context
2. Reference has been made on account of line of Judgments of the Hon’ble Supreme Court of India and the observations made by the Apex Court, and it necessitates this Court to consider the reference in order to avoid inconsistency in dealing with bail/anticipatory bail petitions. Different High Courts are following distinct procedures for listing of bail/anticipatory bail petitions. Therefore, certain procedures being adopted by the one High Court if applied to other High Courts, it results in an anomalous situation and inconsistency in deciding the bail petitions have arisen. Therefore, it is imminent to look into the march of law on the issue relating to listing of bail/anticipatory bail petitions for hearing.
Relevant Precedents
3. Initially, the Hon’ble Supreme Court of India in the case of Shahzad Hasan Khan vs. Ishtiaq Hasan Khan and Another 1 , made an observation in paragraph No.5 of the Judgment that “If successive bail applications on the same subject are permitted to be disposed of by different Judges there would be conflicting orders and the 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 issue and there would be wastage of Court’s time. Judicial discipline requires that such matters must be placed before the same Judge, if he is available for orders”.
4. Perusal of the facts in the above case reveal that the criminal case arose from and out of a single First Information Report (F.I.R) and in order to avoid inconsistency in the matter of grant of bail/anticipatory bail applications, the Apex Court made an observation. The said observation was made in the context of the facts and need not be construed as a direction to be followed universally by all the High Courts across the Country.
Hon’ble Division Bench considered the State of Maharashtra v. Captain Buddhikota Subha Rao – Citation: (1989) Supplementary (2) SCC 605; Jagmohan Bahl and Another v. State (NCT of Delhi) and Another – Citation: (2014) 16 SCC 501; Shahzad Hasan Khan v. Ishtiaq Hasan Khan and Another – Citation: (1987) 2 SCC 684;
After quoting the aforesaid Judgments the Hon’ble Division Bench observed as follows:
9. Above observations / findings of the Apex Court are relating to the bail/anticipatory bail applications in the High Court of Allahabad. The Three Judges Bench directed the Registrar General, Allahabad High Court, but not issued any direction to all other High Courts across the Country.
Clarification by the Apex Court
12. In the case of Shekhar Prasad Mahto @ Shekhar Kushwaha vs. The Registrar General, Jharkhand High Court and Another, significantly, the Apex Court took note of the observations made in line of Judgments are causing inconvenience to various High Courts across the Country in listing of bail/anticipatory bail applications, and clarified the issues.
Analysis of the Apex Court’s Clarification
13. Reading of the Judgments referred above would reveal that in some Judgments, observations are made and in some Judgments, directions are issued. In few Judgments, directions are issued to list the bail/anticipatory bail applications before the same Judge, if it relates to same FIR/crime number. Certain observations made in other Judgments are that successive bail/anticipatory bail applications are to be listed before the same Judge, who initially dealt with the bail/anticipatory bail applications. Thus, the Hon’ble Supreme Court clarified the position in the case of Shekhar Prasad Mahto cited supra.
Conclusion on the Legal Position
16. The legal position on listing of bail/anticipatory bail applications are now clarified by the Apex Court in the case of Shekhar Prasad Mahto @ Shekhar Kushwaha cited supra. The clarifications issued in unequivocal terms reiterates that all the bail/anticipatory bail applications arising out of the same FIR/crime number should be placed before one learned Judge. This would ensure that there is a consistency in the views taken by the learned Judge in different bail/anticipatory bail applications arising out of the same FIR. However, if on account of change of the roster, the learned Judge who was earlier dealing with the bail/anticipatory bail matters is not taking up the bail/anticipatory bail matters, the aforesaid directions would not be applicable.
Answer to the Reference
19. In the opinion of this Court, the above clarifications would remove inconsistency and to maintain consistency to a significant extent and therefore, this Court is inclined to answer the reference as follows:
(1) All bail/anticipatory bail applications arising out of the same FIR/Crime Number shall be listed before the same learned Judge holding roster. Currently, in the High Court of Madras no such difficulty exist, as one learned Judge at the Principal Seat and another at the Madurai Bench are holding roster to hear bail/anticipatory bail applications.
(2) Upon a change of roster, successive bail/anticipatory bail applications, including consequential connected petitions, if any, shall be listed before the learned Judge holding the roster.
(3) The learned roster Judge, while dealing with the successive bail/anticipatory bail applications may give due weightage to the views expressed by the predecessor learned Judge who dealt with bail/anticipatory bail application arising out of the same FIR/Crime Number. However, in the event of differing views taken, reasons may be recorded.
(4) The Registry of the High Court of Madras shall ensure that all bail/anticipatory bail petitions filed shall contain the following informations;
(a) Number of previous bail/anticipatory bail petitions, if any;
(b) Details of such petitions;
(c) Copies of the orders passed;
(d) A statement regarding the pendency of any petitions before any Court.
Conclusion
20. Accordingly, this reference stands answered. The Registry, High Court of Madras both at the Principal Seat and the Madurai Bench shall list all the bail/anticipatory bail petitions, including consequential connected petitions before the learned Judge holding the roster for disposal.
Judgments Cited or Relied
1. Shahzad Hasan Khan v. Ishtiaq Hasan Khan and Another – Citation: (1987) 2 SCC 684
2. State of Maharashtra v. Captain Buddhikota Subha Rao – Citation: (1989) Supplementary (2) SCC 605
3. M.Jagan Mohan Rao v. P.V.Mohan Rao and Another – Citation: (2010) 15 SCC 491
4. Jagmohan Bahl and Another v. State (NCT of Delhi) and Another – Citation: (2014) 16 SCC 501
5. Sajid v. State of Uttar Pradesh – Citation: (2023) SCC Online SC 1816
6. Rajpal v. State of Rajasthan – Citation: (2023) SCC Online SC 1714
7. Kusha Duruka v. State of Odisha – Citation: (2024) 4 SCC 432
8. Pradhani Jani v. State of Odisha – Citation: (2024) 4 SCC 451
9. Shekhar Prasad Mahto @ Shekhar Kushwaha v. The Registrar General, Jharkhand High Court – Citation: W.P.(Crl).No.55 of 2025, decided on 07.02.2025
Party
Y. Babu – The Inspector of Police, Sulur Police Station, Coimbatore District – Crl OP No.31787 of 2024 – 21.02.2025 – Hon’ble Justice Mr. Justice Sunder Mohan.
Y. Babu – The Inspector of Police, Sulur Police Station, Coimbatore District – Crl OP No.31787 of 2024 – 04.03.2025 – THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM AND THE HONOURABLE MR. JUSTICE K.RAJASEKAR.
