IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.24636 of 2009 UDAY YADAV Son of Tej Narayan Yadav, resident of Village- Auraha, P.S. Laukhi, District-Madhubani. .......................................................... Petitioner Versus STATE OF BIHAR .................................................................... Opposite Party ********** For The Petitioner : Mr. Bindhyakeshri Kumar, Sr. Adv. Mr. Rana Sanjay Kr. Singh, Adv. Mr. Bijay Bhushan Pd. Adv. Mr. Ratnakar Jha, Adv. For The State : Mr. Rajendra Prasad Singh, A.P.P. ******* P R E S E N T THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA Mihir Kr. Jha, J 1. Heard Mr. Bindhyakeshri Kumar, learned Senior counsel for the petitioner and counsel for the State. 2. In this application the petitioner has made a prayer for grant of regular bail in connection with Laukhi P.S. Case No.108 of 2007, lodged under sections 147, 148, 302, 120B and 506 of the Indian Penal Code and section 27 of the Arms Act. 3. Learned Senior counsel appearing for the petitioner had submitted that earlier the prayer for bail of the petitioner was dismissed by this Court by an order dated 18.6.2008 in Cr. Misc. No. 1177 of 2008 on merits but without hearing the submissions of counsel for the petitioner and as such this Court would be required to once again go into merits of the case. Sri Kumar, learned Senior counsel has in this context also taken a firm stand that this Court had committed error of procedure in disposing of the earlier bail application of the petitioner on merits even when the earlier counsel for the petitioner had not appeared and argued the case on merits. He is also of the view that this Court in absence of counsel for the petitioner ought to have dismissed the application for default but in no event on merits. In this regard he has placed 2 reliance on the judgment of this Court in the case of „Kawleshwar Singh & Anr Vs. Raghubir Singh & Ors, reported in AIR 1961 Patna 299 and also in the case of „Kishori Prasad Vs. The State of Bihar & Ors, reported in 2008 (2) PLJR 458. 4. Turning to the merits, learned senor counsel had also been submitted that the co-accused Manoj Yadav and Pramod Yadav having identical allegations were subsequently granted regular bail on 12.1.2009 and 28.5.2009 in Cr. Misc. No.41581 of 2008 and Cr. Misc. no.3290 of 2009 respectively after rejection of prayer for bail of the petitioner on 18.6.2008 and thus in view of the aforesaid fresh material this Court should reconsider the matter for grant of regular bail to the petitioner on merits. 5. It had also been submitted by him that as the case diary was not called for and looked into earlier while dismissing the bail petitioner of the petitioner on merit on 18.6.2008 the same has resulted into committing an error of record in holding the petitioner causing firearm injury whereas in the postmortem report there is no fire arm injury on the person of the deceased, and the doctor conducting the postmortem had found only bruises over the person of the deceased. He has therefore contended that this Court should also call for the case diary before reconsidering the prayer of the petitioner for grant of regular bail on merits. 6. Learned Counsel for the State, on the other hand, had submitted that once prayer for bail of the petitioner was rejected on merits there would be no occasion for this Court to reconsider the prayer for bail again on merits and if the petitioner was so aggrieved he could have gone in appeal to the Apex Court against the earlier order of this Court. It was also submitted that the case 3 of the petitioner in fact stands on a different footing as against other co-accused persons who have been subsequently granted regular bail by this Court after rejection of the prayer for of the petitioner. 7. Learned Counsel for the State in this regard has also submitted that it was not correct on the part of learned counsel for the petitioner to say that on earlier occasion the prayer for bail was rejected on merit on 18.06.2008 without looking into case diary. He has also sought to repel the other submissions of learned counsel for the petitioner by taking a categorical stand that there is no procedural law which prohibits this Court to decide the case for grant of bail on merits in case of non-appearance of the counsel for the petitioners and the two cases relied by the learned counsel for the petitioner being not related to the grant of bail are completely distinguishable. 8. In view of aforementioned submissions, the first and foremost question which would arise for adjudication is as to whether this Court has jurisdiction to decide the issue for grant of bail on merits in absence of the counsel for the petitioner and dispose of the same on the basis of materials on record. As no direct authority on this issue has been placed by counsel for either of the parties, it would be useful and in fact essential to lay down law as with regard to permissibility and/or jurisdiction of this Court to dispose of the bail application on merits even in absence of counsel for the petitioner. 9. Prayer for grant of anticipatory or regular bail during pendency of investigation and/or enquiry and/or trial is adjudicated by this Court in exercise of its power under sections 4 438 and/or 439 and 440 of the Code of Criminal Procedure (Cr.P.C.). Section 438 of the Cr.P.C. deals with concurrent power of the High Court or the court of Sessions for grant of anticipatory bail and the relevant portion thereof reads as follows:- “Direction for grant of bail to person apprehending arrest:- (1) where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Sessions for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:- (i)the nature gravity of the accusation; (ii)the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii)the possibility of the applicant to flee from justice; and (iv)where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, Either reject the application forthwith or issue an interim order for the grant of anticipatory bail: Provided that, where the High Court or, as the case may be, the Court of Sessions, has not passed any interim order under this sub- section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in- charge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application. (1-A)Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court. (1-B)The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice. (2) When the High Court or the Court of Sessions makes a direction under sub-section (1), it may 5 include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including- (i)a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii)a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii)a condition that the person shall not leave India without the previous permission of the Court; (iv)such other conditions as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).” (underlining for emphasis) 10. Thus from a bare reading of the aforesaid provisions of section 438 of the Cr.P.C. it would appear that there is no bar that such order for grant of anticipatory bail either by the Court of Sessions or the High Court could be passed only if counsel for the petitioner would press his application on merits. As a matter of fact either the High Court or the Court of Sessions can decide such prayer after taking into consideration certain factors, namely, nature and gravity of the accusation and criminal antecedent of the applicant seeking bail as also the possibility of the applicant fleeing from justice. For all these consideration the Court has to merely peruse the materials either placed in the bail application or in the case diary and therefore strictly speaking there is no statutory requirement under section 438 of the Cr.P.C. which 6 makes it obligatory to also hear the counsel for the petitioner even if he after filing of the bail application would decline or abstain from appearing and arguing the case on merits. From the underlined provisions of Section 438 (I-A.) Cr.P.C. infact it is clear that it is obligatory on the part of the court to have presence of public prosecutor for his being heard in case where arrest of the accused has been stayed by the High Court or the Court of Sessions by way of an interim measure but there is no similar mandate of legislature for also ensuring compulsive presence and hearing the counsel for the petitioner before disposing of his prayer for anticipatory bail, though in certain eventuality the court can seek personal presence of the petitioner seeking anticipatory bail. 11. Similarly in the case for grant of regular bail the provisions of sections 439 of the Code of Criminal Procedure is applicable, which reads as follows:- “439. Special powers of High Court or court of Sessions regarding bail- (1) A High Court or Court of Sessions 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 Sessions 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 Sessions may direct that any person who has been released on bail under this Chapter be 7 arrested and commit him to custody.” (underlining for emphasis) 12. Thus from a bare perusal of the aforementioned provisions of Section 439 Cr.P.C. it again becomes clear that even for grant or rejection of prayer for regular bail there is no statutory compulsion on the court for ensuring presence and hearing the counsel for the petitioner and in his absence dismiss the same only by way of default. The legislature infact has made provision for issuance of notice and hearing the public prosecutor in certain eventualities as underlined above but there is no similar provision for notice and/or hearing also the counsel for the petitioner seeking regular bail of the petitioner. 13. It has to be remembered that whereever the legislature even in the context of Code of Criminal Procedure had thought it necessary to hear the counsel for the petitioner as a condition precedent for disposal of the case, a clear indication has been provided in the procedural laws. In this context one may readily take notice of sections 385 and 386 of the Cr.P.C conferring powers on the appellate court for disposal of Criminal Appeal wherein it is the requirement of law that such an appeal has to be disposed of only after hearing the appellant or his Advocate, if he appears as also the Public Prosecutor. In fact, it is on account of this specific provision contained in section 386 of the Cr.P.C. that it has been held by the Apex Court that no Criminal appeal can be dismissed by way of default and has to be decided on merits even if counsel for the appellant would not appear by appointing counsel for the appellant under orders of the Court. Obviously, such provision has not been made in the case for consideration of grant of bail. 8 14. It is in this back drop that this Court would also examine the ratio of the case of Kameshwar Singh (supra), heavily relied by learned senior counsel for the petitioner for supporting his submission that a bail application in absence for counsel cannot be disposed of on merits and has to be dismissed only by way of default. The case of Kawleshwar Singh (supra) arose out of a proceedings of order 41 Rule 17 C.P.C. which itself envisages dismissal of an appeal for default due to nonappearance of the appellant and prohibits its disposal on merit as would be apparent from its following clear and unambiguous provisions, namely:- “17. Dismissal of appeal for appellant’s default-(1)Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.” “Explanation-Nothing in this sub- rule shall be construed as empowering the Court to dismiss the appeal on the merits.” 15. Thus from a perusal of the aforementioned rule and especially its explanation, it would be clear that the Court cannot dismiss an appeal on merits if the appellant does not appear when the appeal is called on for hearing. There being however no similar provision in section 439 of the Cr.P.C., this Court would readily come to a conclusion that an application for bail can be dismissed on merits even if the petitioner and/or his counsel would not appear. To that extent reliance placed by learned counsel for the petitioner on the judgment of this Court in the case of „Kawleshwar Singh (supra) is wholly misplaced, inasmuch as, all that was held there was as follows:- “Learned counsel raised a technical point in support of this appeal. His submission is that in default of the appellants the appeal ought not to have been decided on merits on the 10th 9 August, 1959. The court either ought to have adjourned the hearing of the appeal or ought to have dismissed it for default under Rule 17 of order 41 of the Code of Civil Procedure. It had no jurisdiction to dismiss it on merits.” 16. The aforementioned view in fact has also been reiterated in the judgment of the Apex Court in the case of ‘Thakur Sukhpal Singh Vs. Thakur Kalyan Singh & Anr’ reported in A.I.R. 1963 SC 146, in the case of ‘Deo Dutta Singh & Ors Vs. Ram Naresh Singh & Ors’ reported in AIR 1973 Patna 166 and even recently in the case of „Sita Devi & Ors Vs. Indradeo Lal’ reported in 2009 (1) PLJR 836, wherein the scope of order 41 Rule 17 of the C.P.C. has been examined at length for holding that an appeal not argued on merits in absence of appellant or his counsel should not be dismissed on merits and may only be dismissed by way of default. 17. From the above reasonings and analysis it is manifest that it is the requirement of the statute under order 41 rule 17 of the C.P.C. on which either the Apex Court or this Court has consistently held that an appeal could not be dismissed on merits if counsel for the appellant would not appear and press the same and that it can be dismissed only for default without adverting on the merits of the case. In fact, after insertion of the explanation by the legislature under order 41 rule 17 of the C.P.C. there would be little scope for entertaining any doubt that an appeal cannot be dismissed on merits in absence of the appellant and/or counsel. This position of law, however, cannot be made applicable in the cases relating to disposal of the bail applications by this Court in terms of section 438 and 439 of the Code of Criminal Procedure, wherein there is no statutory bar for their being disposed of on 10 merits unlike Order 41 Rule 17 C.P.C. . 18. Similarly the reliance placed by learned counsel for the petitioner on the judgment of this Court in the case of Kishori Prasad (Supra) also seems to be misplaced inasmuch as the same relates to disposal of a writ petition as would be apparent from the following passages of the aforesaid judgment:- "The appeal is directed against the order of the learned Single Judge dated 3.10.2007. It appears from the order under petitioner was not present and in the presence of the learned counsel for the respondents, on his submission, the writ petition has been dismissed on merit instead of dismissing the writ petition for want of prosecution which could have enabled the appellant to pursue the remedy of restoration and seeking hearing on merit. We have also earlier made it clear and we again make it clear that where the learned counsel for the petitioner is not present, the ordinary course is either to postpone the hearing or to dismiss it for want of prosecution but in no circumstances it is to be decided on merit. The same view has also been taken by the Hon‟ble Supreme Court in number of matters.” 19. The aforesaid proposition of law in the case of Kishori Prasad (Supra), even in the matter of a disposal of a writ petition by this Court in exercise of power under Article 226 and 227 of the Constitution of India was not followed by the subsequent Division Bench of this Court in the case of „Kedar Nath Tripathy Vs. State of Bihar & ors’, reported in 2008 (3) PLJR 470, which after noticing the law laid down in the case of Kishori Pd. (Supra) had held as follows:- “2.In our view, the aforesaid observations cannot be said to laying down an absolute proposition that in absence of the party or his counsel, writ petition cannot be decided on merits. It could not have been because there is no such fetter imposed upon the Single Judge exercising high prerogative jurisdiction under Article 226 of the Constitution of India. It needs no elaboration that the proceedings under Article 226 11 of the Constitution are not governed by the Code of Civil Procedure excludes the applicability of the provisions contained in the Civil Procedure Code to the proceedings under Article 226 of the Constitution. No judgment of the Supreme Court has been brought to our notice holding other wise in so far as writ jurisdiction under Article 226 of the Constitution of India is concerned. 3.We are, thus, of the view that in writ jurisdiction, even in absence of the party or his counsel, it is open to the Court to proceed with the matter on merits and decide accordingly.” 20. Thus, in view of subsequent Division Bench judgment in the case of Kedarnath Tripathy, it must be held that earlier Division Bench judgment of Kishori Prasad (Supra) is no longer a good law and in any event the same cannot be made applicable in this case being one for consideration of prayer for regular bail under section 439 of the Code of Criminal Procedure. 21. A question would still arise that if a bail application has been heard and decided on merits and prayer for bail is rejected, what would be remedy for the petitioner ? This aspect of the matter was, of course, decided with reference to a Criminal Revision application by this Court in the case of „Uma Shankar Jha Vs. State of Bihar’ reported in 2001 (3) PLJR 723, wherein it was held that in an appropriate case where criminal revision has been disposed of without hearing counsel for the petitioner, the Court in exercise of power under section 482 of the Code can recall such order and direct it for being listed for hearing afresh. Similar view has been expressed by the Apex Court in the case of ‘Satin Chandra Pegu Vs. State of Assam’ reported in 2007 (1) PLJR (S.C.) 91 that in case Criminal revision was decided on merits by the High Court in absence of the counsel, the same could be heard on merit again after recalling the order, in case adequate ground for non appearance of counsel was shown. The Apex Court 12 in that case in fact exercising its power under Article 142 of Constitution of India in the interest of justice had remitted back the matter to the High Court. 22. Thus, if the petitioner had shown sufficient reasons for his counsel to be not present on the date when his bail application was heard and disposed of on merits by this Court on 18.06.2008 and had made a prayer for recalling that order and hearing of bail application on merits, an appropriate order after taking into account the circumstances in which counsel for the petitioner could not appear to press the bail application, could have been passed but the way he has approached this Court for reconsideration of his prayer for bail on merits by way of right taking a frontal stand that this Court had no power and/or jurisdiction to decide the prayer for bail on merits in absence of his counsel, there would be little option but to hold that this application is not maintainable. 23. This Court, in fact, also cannot shut its eyes that more than 60,000 criminal miscellaneous applications are being filed every year only for grant of bail and thus it would be impossible for this Court to keep on considering the prayer for bail of same accused again and again on merits who would manage to get his earlier application dismissed for default on account its placed before a particular Bench with a view to renew his prayer on merits whenever he would find that there is a more favourable Bench available to him. Such Bench hunting tactics by the litigants and/or their counsel has to be discouraged firmly by both hands for the effective administration of justice by this Court as also for utilizing limited time that is available with this Court for 13 disposal of only bail applications. 24. The present scenario in which thousand of bail applications are pending before this