While considering bail plea of accused, Sessions Judges have to ensure that it is verified whether any bail application of such applicant in FIR/complaint is pending or decided before High Court, directs Punjab & Haryana HC

Read Order: Kulwant Singh @ Sajan v. State of Punjab

Monika Rahar

Chandigarh, March 17, 2022:  While dealing with the question of the effect of filing bail applications and passing of bail orders by the trial Court/Sessions Court during the pendency of bail application before High Court by the same accused without disclosing such pendency, the Punjab and Haryana High Court has directed all the Sessions Judges of Punjab, Haryana and UT Chandigarh to verify from the official website of the High Court as to whether any bail application with respect to the same applicant in FIR/complaint is pending/decided before the High Court or not and the status of the same if any.

The Bench of Justice Jasgurpreet Singh Puri was approached to decide three different petitions originating from three different FIRs having different factual backgrounds but having the same issue of law, which was regarding the effect of filing bail applications and passing of bail orders by the trial Court/Sessions Court during the pendency of bail application before High Court by the same accused without disclosing such pendency and what safeguards should be adopted by the trial Court/Sessions Court in this regard. 

Mr. Kanwaljit Singh, Senior Advocate (appointed as amicus curiae) submitted that in the given circumstances in all the three cases, in order to send a correct message and to have a deterrent effect, the regular bails granted by the respective Additional Sessions Judges during the pendency of the bail applications before the High Court should be set aside by cancelling the order and the benefit granted to the petitioners should not be extended in view of the fact that they suppressed material facts from the Additional Sessions Judge.

The Amicus referred to the judgments of the Supreme Court in Dalip Singh Versus State of Uttar Pradesh and others , 2010(2) SCC 114 and Kishore Samrite Versus State of U.P. and others , 2013(2) SCC 398 to submit that a party who approaches the Court by suppressing the facts and to mislead the Court is not entitled to be heard on merits and that it is a bounden duty of anyone approaching the Courts to state the whole case fully and fairly and any attempt to mislead and approach with unclean hands should be dealt with severely. In view of the above, the litigants are not entitled to be heard on merits and are not entitled to any relief. 

However, Senior Advocate Mr R.S. Rai, another amicus curiae, recommended that the Court should strike a balance between the liberty of an individual and the nature and level of misconduct on their part. He submitted that there is a difference between cancellation of bail and setting aside the bail order by a higher Court. The Senior Advocate added that the parameters for cancellation of bail or for annulment/setting aside of the bail orders were not satisfied in the present set of cases and, therefore, instead of cancelling/setting aside of the bail orders, suitable costs may be imposed on the petitioners for their misconduct.

He also submitted that strict guidelines were required to be issued to check such a practice in future. The Counsel submitted that an action done by a counsel is done on behalf of a litigant and in case of suppression, costs should be imposed on the litigant. 

The Court identified the following two aspects, namely, whether bail granted to the petitioners by the respective Trial Court should be cancelled/annulled/set aside on the basis of suppression and concealment of material fact regarding pendency of bail application before the High Court or the petitioners be burdened with costs due to their misconduct. Secondly, the safeguards which should be adopted to check such practices in future.

While considering the first aspect, the Court opined that a more realistic and pragmatic approach would be required in view of peculiar facts and circumstances of the present cases. The Court added that the conduct of all the three petitioners in filing the bail application before the Lower Court without disclosing the pendency of the bail application before the High Court is highly disapproved and is deprecated. 

Justice Puri also opined that it was the solemn duty of the petitioners or their counsels to have disclosed this fact to the Lower Court with truthfulness and honesty as these two elements are sacrosanct for imbibing purity in the administration of justice. Further, the Court opined that Article 21 is the heart of the Constitution and therefore, the first aspect has to be tested on the anvil of the fundamental right guaranteed under Article 21 of the Constitution of India. 

Further, the Court opined that cancellation of bail and annulment/setting aside of bail orders are two different aspects. The former is based upon the violation of terms and conditions of the bail order and other parameters as aforesaid but setting aside/annulment of bail order by a higher Court is based upon different parameters i.e. legality or perversity in the passing of the order of bail. 

The Court also opined that in the bail orders of the lower court there is neither any application for cancellation of bail nor any petition for setting aside of bail by the State or any other person. Therefore, the question that would remain is as to whether such bail orders should be set aside or cancelled by this Court on the ground of suppression of material fact regarding the pendency of the bail application before this Court or not. 

All the orders granting bail were passed on their own merits and there is no grievance raised by anybody to the effect that bail has been misused by the petitioners or that there is any illegality or perversity in the orders passed by the Courts, added the Court. 

On the factual background of the case, the Court asserted that although there was a suppression of material fact before the lower court but that fact was not material for the purposes of determination of the lis and the orders of bail have been passed on their own merit. Therefore, the suppression of a material fact of non-disclosure of pendency of bail application before this Court would be subservient to the right of liberty granted to the petitioners under Article 21 of the Constitution of India since the bail orders were decided on merits, opined the Court. 

Thus, the Court adjudged, “Therefore, in the light of the aforesaid facts and circumstances of the present three cases, this Court is of the view that instead of cancelling/anuling/setting aside the three bail orders passed by the respective learned Additional Sessions Judges, the end of justice would be served to dismiss the present petitions by imposing costs upon the petitioners.”

On the second aspect, the Court laid guidelines directing the Sessions Judges to ensure that in the bail applications (regular/anticipatory) submitted in their Sessions Division, the Ahlmad attached with the respective Court should verify from the official website of the Punjab and Haryana High Court, Chandigarh as to whether any bail application qua the same applicant in FIR/complaint is pending/decided before the High Court or not and the status of the same, if any. 

Secondly, the Court directed that after verifying the aforesaid, a report be placed on the case file for the perusal of the concerned Court, as also that it must be mandatorily mentioned in every application for bail (regular/anticipatory) as to whether such or similar application for bail has or has not been made before any other Court. In case the same was made, then its status could also be mentioned. 

Fourthly, the Court directed the Director Prosecution of State of Punjab, Haryana and Union Territory, Chandigarh shall instruct the Public Prosecutors of their respective States that they shall be duty-bound to supply the necessary information to the concerned Court regarding pendency or decision of any earlier bail application of the accused in the same offence after taking information from the concerned I.O/police official.

Finally, after expressing its appreciation for the assistance of the amicus curiae, the Court held the copy of this order be circulated to all the District & Sessions Judges as well as Director Prosecution of the State of Punjab, Haryana and Union Territory, Chandigarh through the Registrar General of this Court.