Read Order: Vijay Kumar @ Vijay v. State of Punjab 

Vivek Gupta

Chandigarh, August 3, 2021: The Punjab and Haryana High Court has taken a serious view of simultaneous bail pleas filed clandestinely by an accused before the trial court as well as the high court, calling it a “fraud” played upon the courts. 

While rejecting the bail granted by the lower court, the bench of Justice Manjari Nehru Kaul stated that “time and again, more so in the recent past, it has come to the notice of this Court that during the pendency of a petition under Section 439 Cr.PC before High Court, in some cases, the accused have clandestinely approached the trial Court seeking a similar relief in the matter of bail by either concealing the factum of the pendency of a petition under Section 439 Cr.PC before this Court or by misrepresenting facts”. 

“Such malpractices which are being indulged in, are without a doubt, a matter of serious concern which deserve to be nipped in the bud at the earliest,” the bench observed. 

The High Court, then issued relevant directions to the lower courts in the States of Punjab, Haryana and the Union Territory of Chandigarh. 

“In each and every case when an application for bail is made before the trial courts, under any of the provisions of the Code of Criminal Procedure, it shall be mandatory to mention in the application as to whether such or similar application for bail under any of the provisions of Code of Criminal Procedure has or has not been made before any Superior Court, and if at all, a Superior Court has been approached for similar relief, the result thereof,” the Bench directed.

Secondly, an application which does not contain the aforementioned information shall not be accepted/entertained and would be returned for resubmission with the necessary information, the bench added.

Thirdly, the bench said: “It needs to be also clarified that the Public Prosecutors / prosecuting agency shall be duty bound to apprise the Court concerned (before whom the bail application has been moved), after collecting the necessary information from the investigating officers with respect to the filing of any application/petition before any Court, seeking concession of bail under the provisions of Code of Criminal Procedure and the result thereof.

“In case of any lapse/default on the part of the investigating agency/prosecution in the said regard, it would be construed to be a fraud played upon the Court, which could invite departmental as well as penal action against the erring parties/officials, as the case may be,” the HC said. 

“Registrar General of this Court is directed to circulate this order to all concerned for information, and necessary and strict compliance,” the bench added. 

How did the matter come to light? 

It pertains to the second petition filed in the High Court for grant of regular bail to the petitioner in a case registered on 28.08.2020 under Sections 454, 380 IPC registered at Police Station Hajipur District Hoshiarpur. 

On the last date of hearing, a prayer was made by the learned counsel for the petitioner for withdrawal of the instant petition on the ground that the petitioner had since been released on bail vide order dated 15.06.2021 of Judicial Magistrate, Ist Class, Mukerian. 

In this background, a report was called for from the lower court asking how the petitioner had been extended the concession of bail during the pendency of the instant petition. 

“Report dated 06.07.2021 from Judicial Magistrate, Ist Class, Mukerian has been received, which as per the report, the petitioner approached the trial Court for grant of regular bail under Section 437 Cr.PC by misrepresenting and concealing the factum of the instant petition having been filed and still pending consideration before this Court,” the HC said in the order. 

As per the bail application filed under Section 437 Cr.PC by the accused-petitioner on 08.06.2021 as well as the affidavit of the mother of the accused-petitioner, which were annexed with the said report, it clearly stands revealed that the pendency of the petition in the HC was cleverly concealed from the lower court, the High Court observed.

“A perusal of the contents of the bail application and affidavit makes it abundantly clear that a fraud has been played not only upon the Court below but also this High Court in as much as the instant petition was filed on 25.05.2021 by way of second petition under Section 439 Cr.PC  and on the other hand an application seeking concession of bail under Section 437 Cr.PC was filed subsequently on 08.06.2021 before the trial court by cleverly concealing the pendency of the instant petition,” stated the bench.  

In the circumstances, it is evident that there has been blatant concealment and  misrepresentation of facts while moving the application under Section 437 Cr.PC on 08.06.2021, the HC said. 

It further said the lower court cannot thus be held responsible for any judicial over-reach much less impropriety in entertaining the application filed under Section 437 Cr.PC on 08.06.2021 and thereafter extending the concession of bail to the petitioner. 

“In the aforementioned circumstances, the prayer made by the counsel for the petitioner seeking withdrawal of the instant petition on the ground that the petitioner has since been released on bail vide order dated 15.06.2021 by the Court below deserves to be declined. This Court deems it appropriate to suo moto take cognizance of the fraud, which has been played upon both this Court as well as the trial Court by the petitioner. Notice is issued to the petitioner as to why the bail granted to him by the Court below vide order dated 15.06.2021 be not cancelled,” added the bench. 

The matter will be next heard on August 18. 

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