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Judgment
Naheed Ara Moonis, J.—Heard learned Counsel for the applicant and learned AGA and have taken through the record.
Second bail application has been filed on behalf of the applicant with a prayer to allow the same while the first bail application of the applicant was allowed by another Bench of this Court vide order dated 4.2.2010 whereby the applicant was granted bail on the undertaking of learned Counsel appearing on behalf of the applicant.
Learned AGA has raised preliminary objection with regard to maintainability of the second bail application. It is submitted by the learned AGA that second bail application would be maintainable only if the first bail application was rejected either by the Court of Sessions or by this Court.
Brief genesis giving rise to the present case is that a Fazlur Rahman @ Vicky @ Sameer v. State Criminal Misc. Bail Application No. 24116 of 2009 was filed on behalf of the applicant before this Court on 8th September 2009 in Case Crime No. 1384 of 2008 under Sections 420/467/468/471/120B IPC read with Section 66 I. T. Act Police Station Sector 20 NOIDA as the bail of the applicant was rejected by the Sessions Judge Gautam Buddha Nagar vide order dated 8.7.2009.
The aforesaid bail application came up on 4.2.2010 before other Bench of this Court presided by Hon''ble Mr. Justice Arvind Kumar Tripathi and the Hon''ble Single Judge was pleased to pass the following order:
Counsel for the applicant submitted that the applicants were not named in the First Information Report, however, subsequently, his name was enclosed along with other co-accused. All other co-accused have already been released on bail. The first bail application was rejected hence, the present bail application has filled. The application is in jail since, 17/11/2008. Learned AGA submitted that co-accused Sovio Das was mastermind behind the entire episode in which he using e-mail ID of applicant and entering password, the amount of the complainant was got transferred. The bail applicant of co-accused was allowed on the condition that they would deposit the amount whatever they received in their share. According to prosecution, the applicant has received Rs. 15 lakh.
Counsel for the applicant submitted that he is ready to deposit the aforesaid amount.
In view of the fact let the applicant, Fazlur-Rahman @ Vicky @ Sameer be released on bail on his furnishing personal bond and two sureties of the like amount to the satisfaction of the court concerned provided the applicant deposit the aforesaid amount of Rs. 15 (fifteen) lakh before the court concerned in Case Crime No. 1384 of 2008 under Sections 420, 467, 468, 471, 120B I.P.C and 66 I.T. Act, at Police Station-Sector 20 Noida, District- Gautam Budhh Nagar.
Learned Counsel for the applicant filed Criminal Misc. Modification/ Correction No. 82299 of 2010 supported by an affidavit on 19.3.2010 with the following prayer:
It is therefore, most respectfully prayed that this Hon''ble Court may graciously be pleased to modify the order dated 4.2.2010 passed in above noted Criminal Misc. Bail Application as mentioned in paragraph No. 7 of this affidavit and/or may pass such other and further order, which this Hon''ble Court may deem fit and proper in the facts and circumstances of the case.
The aforesaid application was taken up by Hon''ble Mr. Justice Arvind Kumar Tripathi on 23.3.2010 and following order was passed:
This is an application for modification/correction of the order. List with previous papers in the next cause list before the appropriate Court.
Learned Counsel for the Appellant filed correction application No. 85002 of2010 on 23.3.2010 with the following prayer:
It is therefore, most respectfully prayed that this Hon''ble Court may graciously be pleased to allow this correction application and be pleased to correct the word in the second paragraph of order dated 4.2.2010 be removed and the bail be granted in term of order dated 4.12.2009 passed by this Court in Criminal Misc. Bail Application No. 21064 of 2009 and/or may pass any such other and further order, which this Hon''ble Court may deem fit and proper in the facts and circumstances of the case.
The aforesaid application was taken up by Hon''ble Mr. Justice A. K. Tripathion 25.3.2010 and Hon''ble Single Judge was pleased to pass the following order:
Heard learned Counsel for the applicant, learned A.G.A. for the State and perused the record.
Learned Counsel for the applicant submitted that the prayer for bail of other co-accused were already allowed with a condition that they will be released on bail if they deposited the amount whatever they have received in their share.
However, in allowing the bail application on ground of parity, the undertaking of the applicant has been recorded to the effect that the applicant was ready to deposit the aforesaid amount.
In place of undertaking, the order dated 04.02.2010 is modified to the effect that if the applicant is claiming parity with other co-accused then if he deposits the amount then he will be entitled to be released on bail in compliance of the order dated 04.02.2010 passed in the bail application of the applicant.
With the aforesaid observation, the present application stand disposed of.
A Petition for Special Leave to Appeal 3090 of 2010 against the judgment and order dated 4.2.2010 in Criminal Misc. Bail Application No. 24116 of 2009 was filed before Hon''ble Apex Court which came up before the Division Bench consisting of Hon''ble Mr. Justice B. Sudershan Reddy and Hon''ble Mr. Justice Surinder Singh Nijjar. The Hon''ble Supreme Court was pleased to pass the following orders:
The SLP is dismissed with liberty to the Petitioner to move the High Court once again in which event the matter shall be considered on its own merits as expeditiously as possible.
The astonishing fact of this case is that the applicant had filed Special Leave to Appeal only against the order dated 4.2.2010 whereby the applicant was granted the bail. This fact was not brought to the notice of the Hon''ble Apex Court that the applicant had already filed correction application which was allowed vide order dated 25.3.2010 modifying the earlier order dated 4.2.2010.
Another application was filed on behalf of the applicant before the Hon''ble Apex Court for modification of the order dated 19.7.2010 in Crl. M.P. No. 3269 of 2011 of 2011. The Hon''ble Apex Court was pleased to pass the following order on 28.2.2011:
Crl. M.P. No. 3269 of 2011,as prayed for, is ordered.
Now Second Fazlurr Rahman @ Vikki @ Sameer v. State of U.P. Bail Application No. 22653 of 2010 has been filed before this Court with following prayer:
It is, therefore, most respectfully prayed from this Hon''ble Court that the present second bail application may be allowed.
For appreciating the controversy involved in the present case, it would be necessary to delineate Section 439 I.P.C.
Special powers High Court or Court of Session regarding bail.
(1) A High Court or Court of Session may direct
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in Sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that Sub-section;
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.
From the bald perusal of the aforesaid section, it emerges that High Court should be approached after the bail is rejected by the Court of Sessions. In the present case the bail of the applicant was rejected by the Court of Sessions vide order dated 8.7.2009. The applicant approached this Court and another Bench of this Court granted bail to the applicant vide order dated 4.2.2010 imposing some conditions on the undertaking given by the learned Counsel for the applicant. The applicant had filed correction application which was disposed of by the same Bench vide order dated 25.3.2010. The applicant had approached Hon''ble Apex Court by means of Special Leave to Fazulur Rahman @ Vicky @ Sameer v. State Appeal (Crl) No. 3090 of 2010 against the order dated 4.2.2010 without disclosing the order dated 25.3.2010 passed on the modification application and the Hon''ble Apex Court was pleased to dismiss the SLP with liberty to the Petitioner to move the High Court once again in which event the matter shall be considered on its own merits as expeditiously as possible. Now the applicant has further approached this Court by means of Second Criminal Misc. Bail Application No. 22653 of 2010 with an ambiguous prayer that the present second bail application may be allowed.
The crucial question which emerges from the facts of the case is that whether the applicant is entitled to file the second bail application for the same relief as the Hon''ble Apex Court has passed the order " the matter shall be considered on its own merits, when the applicant has already been granted bail by Hon''ble Single Judge vide order dated 4.2.2010. This would amount to introduction of a new procedure which is neither contemplated u/s 439 Code of Criminal Procedure nor any such procedure appears to have been evolved by the Hon''ble Apex court through interpretative process of law. Section 439 Code of Criminal Procedure confers discretionary jurisdiction to grant bail but it does not give power to exercise in casual or perfunctory manner. Consideration of the second application for bail when the bail has already been granted by another Bench of this Court vide order dated 4.2.2010 would amount to review or reconsideration of the earlier bail order having co-ordinate jurisdiction as the accusation remains unchanged and the applicant has already been granted on bail.
Having regard to overall facts and circumstances of the case, this matter is referred to the Larger Bench for consideration " whether the second bail application would be maintainable, in compliance of the order dated 19.7.2010 passed by Hon''ble Apex Court in Special Leave to Appeal No. 3090 of 2010 decided on 19.7.2010 when the applicant has already been enlarged on bail by another Bench of this Court vide order dated 4.2.2010? Order