z\215 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2335 OF 2014

[Arising out of S.L.P. (Crl.) No. 8355 of 2014]

Jagmohan Bahl & Anr. ... Appellants

Versus

State (NCT of Delhi) & Anr. ... Respondents

JUDGMENT

Dipak Misra, J.

The present appeal, by special leave, is directed against the

order dated 01.10.2014 passed by the High Court in CRLMC No.

3202/2014, whereby the learned Single Judge, in exercise of the

jurisdiction under Section 439(2) read with Section 482 of the Code of

Criminal Procedure, 1973 (CrPC), has set aside the order dated

20.06.2014 passed by the learned Additional Sessions Judge, Saket

Signature Not Verified

Digitally signed by

Courts, Delhi, who had granted the benefit of anticipatory bail to the
Gulshan Kumar Arora
Date: 2014.12.18
16:35:03 IST
Reason:

appellants in FIR No. 92/2014 instituted for the offence punishable

2

under Section 420/34 IPC, registered at P.S. Defence Colony, New

Delhi.

2. The factual matrix that is required to be exposited for the

purpose of disposal of the present appeal is that the 2 nd respondent

filed an FIR against the present appellants alleging that both of them

had conspired against him and in furtherance of the said conspiracy,

they had subjected him to cheating, criminal breach of trust and have
misappropriated the money. As alleged in the FIR, the appellants

allured the said respondent to buy a property situated at C-93,

Defence Colony, New Delhi, for which he had paid an advance of

Rs.1,50,00,000/- (Rupees one crore fifty lakhs). As the narration

would unfurl, it was apprised by the appellants that the property

comprising entire basement floor and entire ground floor with one

servant quarter with servant’s W.C. and with two car parking space,

with structure standing thereon admeasuring 401 sq. yards along

with proportionate undivided, indivisible and impartible share of

ownership rights in the land underneath would be sold to him and he

will be delivered vacant peaceful physical possession. There are

series of other allegations which would show that on the basis of oral

agreement, certain amount was paid and on 30.04.2013, an

agreement to sell was duly executed between the parties. It is also

3

the case of the informant that remaining part of the amount i.e.

Rs.4,50,00,000/- (Rupees four crores fifty lakhs) was to be paid to the

accused persons at the time of registration of the sale deed on or

before 26.10.2013.

3. As the allegations proceed, after receipt of the amount, the

appellants disputed the amount and delayed the execution of the sale

deed. On an enquiry being made, the 2 nd respondent came to know

that the appellants had entered into an agreement to sell the said

property to a third person. That was the foundation to lodge the FIR.

4. After the lodgment of the FIR, the appellants moved an

application under Section 438 CrPC for grant of anticipatory bail

which was dismissed by the learned Additional Sessions Judge-6,

South East, Saket Courts, New Delhi vide order dated 26.05.2014.

Thereafter, the appellants after expiry of three weeks filed second

application under Section 438 CrPC which came to be considered by

the learned Additional Sessions Judge-04 (Special Judge, NDPS),

South East, New Delhi, who allowed the same by the impugned order

dated 20.06.2014. The aforesaid order was assailed before the High

Court on two grounds, first the accused persons had misrepresented

the facts and that there was no change in the circumstances; and
second, the application for grant of anticipatory bail could not have
4

been entertained by the learned Additional Sessions Judge-04, for the

first application was rejected by the learned Additional Sessions

Judge-6, South East Saket.

5. The High Court referred to certain decisions with regard to the

parameters for grant of anticipatory bail, absence of change of

circumstances, conduct of the accused persons in the manner in

which they had executed the agreement for sale, the need for

custodial interrogation and the impropriety in view of the fact that

another court had entertained the application for consideration

despite the fact that the first application was earlier rejected by

another court and analyzing these aspects, set aside the order for

grant of bail. It is necessary to state here that the High Court has

drawn a distinction between an order passed which is perverse in

nature inviting the wrath of impropriety and an order cancelling order

of bail due to supervening circumstances after the grant of bail.

6. We have heard Mr. Parag P. Tripathi, learned senior counsel for

the appellants, Ms. Pinki Anand, learned ASG for the State of NCT of

Delhi and Mr. Sanjeev Kumar, learned counsel for the informant, the

2nd respondent.

7. On a perusal of the order passed by the High Court, we find that

it has felt disturbed that the second application under Section 438
5

CrPC was allowed by another Additional Sessions Judge who had not

dealt with the first application. It has opined that the Second Judge

could not have entertained the bail application especially when the

earlier Judge was available. To elaborate, the Additional Sessions

Judge who has dealt with the matter on the first occasion, had

neither been transferred from the said court, nor had he become

incapacitated to come to court nor was he absent for a considerable

length of time. As it appears, the High Court has taken exception to

the fact that the application was moved when the 2 nd Judge was

allotted the roaster to deal with the application under Section 438

CrPC.

8. To appreciate the analysis made by the High Court we have

bestowed our anxious consideration and perused the order impugned.

As far as the distinction drawn by the High Court between the

categories of situations, namely, a bail order passed in a perverse

manner excluding the relevant matters and considering the

extraneous matters which deserves to be lancinated in exercise of

supervisory jurisdiction to nullify the same and the other, which is

fundamentally and absolutely situation based for cancelling the order

of bail because of violation of the terms and conditions of the order

granting bail and other supervening circumstances, the distinction

gets support from the recent decisions rendered in Ash Mohammad

V. Shiv Raj Singh @ Lalla Babu & Anr. 1 and Neeru Yadav v. State

of U.P. and Another2 which have taken note of number of earlier

authorities. However, the said situation or circumstance does not

arise in the case at hand.

9. In this context, we may refer with profit to the decision in

Shahzad Hasan Khan V. Ishtiaq Hasan Khan and Anr3 wherein

this Court took note of the fact that three successive bail applications

made on behalf of the accused had been rejected and disposed of

finally by one Judge of the High Court. However, another learn

ed

Judge, despite being aware of the situation, granted bail to the

respondent. In that context, this Court held that long standing

convention and judicial discipline requires bail application to be

placed before the learned Judge who had passed earlier orders.

Proceeding further this Court observed:

"...... 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

1 (2012) 9 SCC 446

2 Crl. Appeal No. 2587 of 2014 (judgment pronounced on 16.12.2014)
3 (1987) 2 SCC 684
7

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, 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 orders".

10. In State of Maharashtra V. Captain Buddhikota Subha

Rao4, the Court, placing reliance on Shahzad Hasan Khan (supra),

opined that:

"...... 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 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 successive bail applications without
change of 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 despatch. It
will also result in consistency".

11. In M. Jagan Mohan Rao v. P.V. Mohan Rao5, this Court

reiterating the principle laid down in Shahzad Hasan Khan (supra),

Buddhikota Subha Rao (supra) and Harjit Singh V. State of

4 (1989) Supp (2) SCC 605

5 (2010) 15 SCC 491
8

Punjab6 held as under:

"In view of the principle laid down by this Court, since the
learned Judge who had refused 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".

12. In this context, we may refer to a two-Judge Bench decision in

Vikramjit Singh V. State of Madhya Pradesh7, wherein bail

granted by one Judge of the High Court was cancelled by another

Judge. This Court, on being moved by the accused, opined that such

a practice is not consistent with judicial discipline which is expected

to be maintained by courts. Proceeding further, the Court observed:-

"..... Otherwise, a party aggrieved by an order passed by

one Bench of the High Court would be tempted to attempt
to get the matter re-opened before another Bench, and
 there would not be any end to such attempts. Besides, it
was not consistent with the judicial discipline which must
be maintained by Courts both in the interest of
administration of justice by assuring the binding nature of
an order which becomes final, and the faith of the people in
the judiciary."

13. On a perusal of the aforesaid authorities, it is clear to us that

the learned Judge, who has declined to entertain the prayer for grant

of bail, if available, should hear the second bail application or the

6 (2002) 1 SCC 649

7 AIR 1992 SC 474
9

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 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. This cannot be allowed to be

encouraged. In this regard we may refer to the pronouncement in

Chetak Construction Ltd. V. Om Prakash and others 8, wherein

this Court has observed that a litigant cannot be permitted "choice" of

the "forum" and every attempt at "forum-shopping" must be crushed

with a heavy hand. In Tamilnad Mercantile Bank Shareholders

Welfare Association V. S.C. Sekar and others 9, it has been

observed that the superior courts of this country must discourage

forum-shopping.

14. Though the said decisions were rendered in different context, the

principle stated therein is applicable to the case of present nature.

Unscrupulous litigants are not to be allowed even to remotely

entertain the idea that they can engage in forum-shopping,

depreciable conduct in the field of law.

8 (1998) 4 SCC 577

9 (2009) 2 SCC 784
10

15. In the instant case, when the Additional Sessions Judge-6 had

declined to grant the bail application, the next Additional Sessions

Judge-04 should have been well advised to place the matter before
the same Judge. However, it is the duty of the prosecution to bring it

to the notice of the concerned Judge that such an application was

rejected earlier by a different Judge and he was available. In the

entire adjudicatory process, the whole system has to be involved. The

matter would be different if a Judge has demitted the office or has

been transferred. Similarly, in the trial court, the matter would stand

on a different footing, if the Presiding Officer has been superannuated

or transferred. The fundamental concept is, if the Judge is available,

the matter should be heard by him. That will sustain the faith of the

people in the system and nobody would pave the path of

forum-shopping, which is decryable in law.

16. Having said what we have stated hereinabove, the natural

corollary would have been to set aside the order as it has been passed

in an illegal manner. Ordinarily we would have issued that direction

but, a significant one, in the present case, the allegations, as we find,

are quite different. The FIR was instituted under Section 420/34 IPC

and relates to execution of an agreement. In such a situation, we do

not intend to set aside the order and direct the appellants to move a
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fresh application for bail under Section 438 CrPC. We are only

inclined to direct that the bail order granted in their favour shall

remain in force and the appellants shall abide by the terms and

conditions imposed by the Court and would not deviate from any of

the conditions.

17. Consequently, we dispose of the appeal concurring with the

reasoning given by the High Court, but in the facts and

circumstances of the case, we set aside the direction cancelling the

order of bail.

........................................J.
[DIPAK MISRA]

........................................J.
[UDAY UMESH LALIT]

NEW DELHI
DECEMBER 18, 2014.
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ITEM NO.1-A COURT NO.6 SECTION II

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Criminal Appeal No(s).2335/2014

JAGMOHAN BAHL AND ANR Appellant(s)

VERSUS

STATE (NCT OF DELHI) AND ANR Respondent(s)

Date : 18/12/2014 This appeal was called on for judgment today.

For Petitioner(s) Mr. Parag P. Tripathi, Sr. Adv.

Mr. Arvind Verma, Sr. Adv.
Mr. Neeraj Chaudhari, Adv.
Mr. Ravjyot Singh, Adv.
Mr. Rajesh Inamdar, Adv.
Mr. Gautam Talukdar, AOR

For Respondent(s) Ms. Pinki Anand, ASG

Mr. Prabal Bagchi, Adv.
Mr. P.K. Dey, Adv.
Ms. Rekha Pandey, Adv.
Ms. Kritika Sachdeva, Adv.
Mr. D.S. Mahra, Adv.

For R-2 Mr. Sanjeev Kumar, Adv.

Mr. M.K. Naik, Adv.
Mr. Sudhansu Palo, Adv.
Mr. Rajesh Singh Chauhan, Adv.

Hon’ble Mr. Justice Dipak Misra pronounced the judgment of the

Bench comprising of His Lordship and Hon’ble Mr. Justice Uday
Umesh Lalit.

The appeal is disposed of in terms of the reportable judgment.

(Gulshan Kumar Arora) (H.S. Parasher)

Court Master Court Master

(Signed reportable judgment is placed on the file)