Forum shopping with respect to successive anticipatory bail applications

Many a time, an anticipatory bail application, filed under Section 438 of the Criminal Procedural Code, 1973 is dismissed by the Court of law, having the jurisdiction to entertain the matter. An anticipatory bail application under the said section can be filed in a Sessions Court as well as in the High Court. Both, the Sessions Court and the High Court have a concurrent jurisdiction, hence the application can be filed before either of them. Provided, the anticipatory bail application has to be necessarily filed before the Sessions Court before approaching the High Court directly. This was vehemently held by the High Court of Allahabad in Harendra Singh v. State of U.P[1] in para 3:

“3. Before adverting to the factual matrix of this case and to ascertain as to whether the applicant is entitled for grant of anticipatory bail or not; a serious legal question has been raised before this Court by the learned A.G.A. that the applicant without exhausting the remedy under Section 438 of Cr.P.C. before the jurisdiction Sessions Court, has directly approached this Court. Therefore, the application is not maintainable and the applicant has to be relegated to the Court of Sessions first and then he can approach this Court.”

After the anticipatory bail application is dismissed by the Court of law, an individual can file the application once again. There have been instances where the subsequent or successive bail application has been filed before the Judge, other than the Judge who heard the matter before.    

Now, this poses a very interesting question before us and that is whether filing of successive or subsequent anticipatory bail applications under Section 438 of the Criminal Procedural Code, 1973 should be before the same Bench (who was seized of the matter) or a different Bench. It is the right of every individual to plead for bail in an offense which is of bailable nature even after the application has been rejected.

After due consideration, the Supreme Court of India, in a catena of judicial pronouncements, has categorically held and observed that the filing of the subsequent or successive anticipatory bail applications before a different Bench defeats the judicial decorum and wastes judicial time. Some of the judgments where the Apex Court has been vocal about such abuse of the process of law are, briefly discussed hereinbelow.

In  Shahzad Hasan Khan v. Ishtiaq Hasan Khan[2], the Court held that in para 7:

“5. 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 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 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 issue and there would be wastage of Courts’ time. Judicial discipline requires that such matters must be placed before the same Judge.”

In State of Maharashtra v. Captain Buddhikota Subha Rao[3], the Supreme Court observed that in para 7:

“7. In such a situation the proper cause, we think, is to direct that the matter be placed before the same Court insasmuch 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 change circumstances. Such a practice if adopted would be conducive to judicial discipline 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 dispatch”.

Again, in Harjeet Singh v. State of Punjab and Another[4], the Supreme Court observed that filing of a subsequent or successive bail application before the same Judge leads to violation of the judicial discipline and held in para 9:

“9. Long- standing convention and judicial discipline require that subsequent bail application ought to have been placed before the same Judge who had passed earlier orders.”

Further, in M. Jagan Mohan Rao v. P.V Mohan Rao and Another[5], the Court opined that where an earlier bail application has been rejected, subsequent bail application, reiterated, must be placed before the same Judge even if roster has changed and the Judge is not hearing bail applications regularly anymore. The Supreme Court of India held in para 3:

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

Furthermore, in Jagmohan Bahl v. State (NCT of Delhi)[6], the Supreme Court observed that a second or successive anticipatory bail application can be filed, though it has observed that such second or successive application should be handled by the same judge who had rejected it on the first occasion and held in para 13:

“13…………the Judge who had 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 and propriety. Needless to say, unless such principle is adhered to, there is enormous possibility of forum- shopping which has no sanction in the law and definitely, has no sanctity. If the same is allowed to prevail, it is likely to usher in anarchy, whim and caprice and in the ultimate eventuate shake the faith in the adjudicating system.”

In the conspectus of the aforementioned judgments, it can be noted that the filing of a subsequent or successive anticipatory bail application under Section 438 of the Criminal Procedural Code, 1973, once the original application has been rejected, has to be before the same Judge.

Forum-shopping or Bench-hunting is ought to be unethical and violative of the judicial decorum and discipline. A duty is cast upon the Advocate appearing in such matters to adhere to the judicial decorum and professional ethics as he/she is an officer of the Court and has a bounden duty towards the Court of law. He/she cannot, in any manner, mislead the Court as he is under an obligation to adhere to the professional ethics and ethos.

Not only this, it leads to a difference in opinion between the Judge who had initially rejected it and the Judge before whom the subsequent application has been filed, as they can have varied opinions. If the subsequent or successive application has been filed before a different Judge other than who was seized of the matter, then certain facts of the case can also be hidden in the subsequent application by the party seeking anticipatory bail. A subsequent or successive application for anticipatory bail should be presented before the Sessions or High Court, in case, there are certain changes in the facts or circumstances of the matter at hand, otherwise, it will be an attempt to burden the judiciary and waste judicial time.

Filing of a subsequent or successive bail application should be before the same Bench as it amounts to violation of the judicial discipline, professional ethics on the part of the Advocate and also poses the judiciary with unnecessary burden.

Related Posts

[1] (2019) SCC OnLine All 4571

[2] (1987) 2 SCC 684

[3] 1989 Supp. (2) SCC 605

[4] (2002) 1 SCC 649

[5] (2010) 15 SCC 491

[6] (2014) 16 SCC 501

Author-Riddhi Goyal (Amity Law School, Noida)