Criminal Misc. No. 32589 M of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. 32589 M of 2007 Date of decision:- 22.5.2008 Lakhvir Singh @ Madan Singh ...Petitioner. Versus State of Punjab. ...Respondent. CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. P.S. Khurana, Advocate For the petitioner. Mr. A.S. Brar, DAG, Punjab. RAJESH BINDAL J. The petitioner is the accused in the FIR No. 27 dated 21.5.2003 under section 420/409/406/467/471/465/120-B IPC and Sections 13(1)(c) and 13(2) of the Prevention of Corruption Act, 1988 registered at police station, vigilance Bureau, Ludhiana Range, Ludhiana. His regular bail application filed earlier before the court below was dismissed and this court also rejected the same keeping in view the fact that he had been declared proclaimed offender. Subsequently on inspection of records as the petitioner found that infact he had not been declared proclaimed offender he filed a fresh bail application before the court below which was rejected, thereafter the present petition was filed before this Court. On 3.10.2007 the learned counsel appearing for the State sought time to confirm as to whether the petitioner had mentioned the factum of his earlier bail application dismissed by this Court on 5.2.2007, in the bail application filed before the court Criminal Misc. No. 32589 M of 2007 2 below thereafter. When the mentioning of the fact of earlier application filed before this Court was confirmed by the learned counsel for the State, the record of the court below was summoned. On perusal of the record, it was recorded in order dated 13.12.2007 that the petitioner had disclosed before the learned Additional Sessions Judge, Ludhiana about his bail application having been dismissed by this Court on 5.2.2007. On 20.12.2007 the petitioner was directed to be released on bail pending trial keeping in view the fact that he was in custody since November, 2006. However, the counsel for the petitioner was directed to assist on the issue as to whether after the rejection of the bail application by this Court, a fresh application could be filed before the court below. Learned counsel for the petitioner has referred to judgment of Hon'ble the Supreme Court in Kalyan Chandra Sarkar etc. versus Rajesh Ranjan alias Pappu Yadav and another AIR 2005 Supreme Court 921 where the issue under consideration was regarding filing of successive bail applications by an accused after even rejection of the earlier bail applications up to Hon’ble the Supreme Court. Para 18 to 20 thereof can be referred to for the purpose, which throw some light on the issue under consideration before this Court. The same are extracted below: “18. It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non bailable is liable to be detained in Criminal Misc. No. 32589 M of 2007 3 custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. But even persons accused of non bailable offences are entitled for bail if the court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the court is satisfied for reasons to be recorded that in spite of the existence of prima facie case there is a need to release such persons on bail where fact situations require it to do so. In that process a person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In such cases if the circumstances then prevailing requires that such persons to be released on bail, in spite of his earlier applications being rejected, the Courts can do so. 19. The principles of res judicata and such analogous principles although are not applicable in a criminal proceeding, still the Courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our country. The findings of a higher Court or a co-ordinate bench must receive serious consideration at the hands of the Court entertaining a bail application at a later stage when the same had been rejected earlier. In such an event, the courts must give due weight to the grounds which weighed with the former or higher court in rejecting the bail application. Ordinarily, the Criminal Misc. No. 32589 M of 2007 4 issues which had been convassed earlier would not be permitted to be re-agitated on the same grounds, as the same it would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting. 20. The decisions given by a superior forum, undoubtedly, is binding on the subordinate fora on the same issue even in bail matters unless of course, there is a material change in the fact situation calling for a different view being taken. Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Therefore, we are not in agreement with the argument of learned counsel for the accused that in view the guaranty conferred on a person under Article 21 of the Constitution of India, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by courts earlier including the Apex Court of the country.” While considering the application of principles of resjudicata and such analogous principles in criminal proceedings, Hon’ble the Supreme Court opined that though these principles are not strictly applicable in criminal proceedings still the courts are bound by the Criminal Misc. No. 32589 M of 2007 5 doctrine of judicial discipline having regard to the hierarchical system prevailing in the country. The findings of a higher Court or a co-ordinate Bench must receive serious consideration at the hands of the Court entertaining subsequent bail application. The court considering the subsequent bail application must give due weight to the grounds which weighed with the former or higher Court in rejecting the bail application. The grounds which have already been considered while rejecting the earlier bail applications cannot be permitted to be re-agitated. Once Hon’ble the Supreme Court has opined that the grounds which had weighed with the former or higher Court in rejecting the bail application are to be considered by the Court considering an application filed at a subsequent stage that means that the subsequent application can be before a court lower in hierarchy to the court which had dismissed the earlier bail application. Accordingly in my view as the issue has already been answered by Hon’ble the Supreme Court in Kalyan Chandra Sarkar's (supra), the same does not need any fresh adjudication. No further orders are required. The petition is disposed of May 22, 2008 (RAJESH BINDAL) ritu-II JUDGE