HIGi-i COURTOF CHHATTiSGARH AT BiLASPUR Cr.M.P, No.112 of 2011 Petstloner Resoondents Bimai Kumar Agrwai S/o Shri OnStamath j^m'al Agsd about-54 year R/o Opposite Circuit house Civi! Lines, Raipur, C.G. Versus 1. State of Chhattisgarh Through out post Hasod, Poifce Station Jayaipur District J'anjgir<;hampa (C.G.) 2. Rajesv Agarwai S/o Shri Rajendra Swarup Agnwal, Aged about-51 years, R/o Ashoka Park, Khamardeehe Road, Raipur, C.G. 3. Chhagan La! Mundra S/o Shri Ksdarnath Mundra Aged aboyt ^ years 4. Rajsev Mundra S/o Shri Kailashnath Mundra Aged about-27 year Both R/o E-8, Ashoka Tower, Shankar Nagar Chowk, Raipur, C.G. (Pstition under Section 482 ofthe Cr.P.C.) (SB: Hon'ble Mr. T.P. Sharma, J.) •^ Mr.Abhishekh Sinha and Mr.Vh/eR Sharma, counse! tor the petttioner. Mr.Rakesh Kumar Jha, Dy.Govt.Advocate for respondsnt No.1;State. ORDER(ORAL) (Passed on 7 March, 2011) 1. By this petition under Section 482 of ths Code of Crimina! Procsdurs, 1973 (for short 'Code'), the petitioner has chailenged iegality and propriety of fhe order dated 14.9.2009 passed by ths Sessions Judga m Bsi! Petifton No.1477/2009, v/hereby the Sesslons Judge, Raipur has granted baii under Seclion 439 ofthe Code to respondents No.2 to 4. 2. i have heard Seansd counsel for the parties, perused ths petition and order impugned. 3. Leamed counsel for ths petitioner submits that initiatty at the instance of present petsfioner and on the basis of complaint made befors tte Judfciai Magistrate First Class, Raipur and in its stancs Poiice Station Ch/ii Lines, Raipur has registered Crime No.24/2008, but finaily final report for not 1 l^dGa. l ;8 S "^£S3EZ;^^-' making out the case against respondents No.2 io 4 was fiisd. Considsring the fina! report the Magistrate proceeded under Chapter XV of the Code which was chaiienged bsfore the revisional Court by ths present pstitioner and vide order dated 1 7.3.2009 passed by the Sessions Judg®,Raipur in Criminal Revteion No.34/2009 has directed for registration of criminai case against respondents No.2 to 4 for the offence punishafale under Sections 177,191,192, 193,403,406, 420,467,468, 471 and 201 ofthe I.P.C. whteh w®schailenged by respondsnts No.2 to 4 and vids order dated 14.5.2009 in Cr.M.P.No.247 of 2009 this Court has quashed the order directing registration passsd by the Sessions Judgs, Raipur. 4. Learned counsst further submits that during course of such inquiry and after r^istration of crime by the Potice Station CMi Lines, Raipur, respondsnts No.2 to 4 has fiied an appiication for granf of baii under Section 438 of th@ Code which was aiiowed by ths Third Additional Sessions Judge, Raipur vide order dated 16.5.2008. Thersafter vide order dated 7.7.2008, the Thsrd Additional Sessions Judge i.e., same Additional Sessions Judge hasgrantsd bail ta respondents No.2 to 4 under Section 439 of the Code. Th® granting bail by the Third Additionai Sessions Judge was also questionsd by the present petitioner and vide order dated 5.5.2009, ths Shen Sessions Judge, Raipur has quashed the bai! order passed vide order dated 7.7.2008 in Bail Petitton No.600/2009 under Section 439(2) of the Cods which was aiso chaiienged in Cr.M.P.No.256/2009 and vide order dated 31.7.2009 thte Court has disposed of the petition wtth observation that after ordsr dated 14.5.2009 passed in Cr.M.P.No.247/2C»9 i.e., quashment of ttie order of Sessions Judge, there was no any criminal case pending against respondents No.2 to 4, no offence has been registered for taking <»gnizance against respondents No.2 to 4 in which they are required to fumish bail or continue in baii. Thereafter, on the basis of inquiry undsr Chapter XV of ttie Code, the Judicia! Magistrate First Class, Raipur has registered the cass against respondents No.2 to 4 for the offsnce punishable undsr Sections 177, 191, 192, 193, 403, 406, 420, 487, 468, 471 and 201 ofthe i.P.C. and issueci warrant of arrest against them, then respondents No.2 to 4 fited application Tor their release on bai! undsr Section 438 ofths Code wiiich v/as granted and thereafter on 14.9.2009 baii undsr Section 439 crfthe Code was granted to respondents No.2 to 4. 5. Learned counssl also submits that at the time of graht of bail vide order datsd 14.9.2008, ordsr dated 5.5.2009 was in existsnce passed by a co-ordinate ^ 2 - Judge, therefore, without distinguishmg the iiacts and ciroumstances, the Sessions Judge was not competent to take contrary visw or to grant baH to respondents No.2 to 4 and by granting baii, ths Sessions Judg® has committed grave illegality and order is sgainst judicial propri^y and juciiciai discipline. 6. Lsamed counsel piaced rstiancs in the matter of Kaiyan Chandra Sarkar v. Rajesh Ranjan a!ias Pappu Yadav and another in whloh the Supreme Court has held that finding of higher court or coordinate Bsnch is binding as res juciicata and ths Courts are bound by the doctrine of judieial disciptine. Lsarned counse! furthsr placed retiance in the matter of State of Maharashtra & Anr. v. Mohd. Sajid Husain Mohd. S, Husain ete. in which ths Supreme Court has he!d in case of serious aitegation agsinst accused persons, accused ara not entitted for discretionary rsiief under Saction 438 of the Cods. Learned counsel aiso piaced reiiance in the matter of Vikramjit Singh v. State of Kladhya Pradesh in which the Supreme Court has held that bai! order passed by a co-ordinate Bench of the same Court cannot be cancelied by co-ordinate Bench without new or additional ground. More so, when eariier order of grant of bai! had bscome final being not appsaied against. 7. On the other hand, ieamad Stats counsel opposes ths petition and submte that the Court below has not committed any ittegaiity whiis granting baii to respondents No.2 to 4. 8. Vide order dated 14.9.2009 the Sessions Judge, Raipur has granted regular bai! and has taksn note of prsvious order dated 5.5.2009 that after theordar passsd by this Court in Cr.M.P.No.256/2009 dated 31.7.2009, the order dated 5.5.2009 passed by the Sessions Judge, Raipur was net in exi^ence. 9. initialiy, on the basis of comptaint filed on behalf of the pstitioner. Judieiai Magistrate First Class, Raipur has directed the poiice under Saction 156(3^ of the Code and Poiice Station Civil Lines, Raipur has registered Crima No.24/2008, but finally final report, not making out the case was filsd before Judicial Magistrate First Class, Raipur. After registraifon of crime and befors submitting of final report, respondents No.2 to 4 were granted antteipatory bail and reguiar bail by the Third Additionai Sessions Judge, Raipur. Order granting baii by the Third Additionai Ssssions Judge, Rripur was canceiteti 1(2005)2SCC42 2AIR 2008 SC 155 3AIR 1992 SC 474 ^> -^-- by the thsn Sessions Judge, Raipur vide order dated 5.5.2eK)8. Order darted 5.5.2009 does not reveai that at at time the then Third Additionai Sesaons Judge was not posted in the Sessions Division, Raipur as Third Additional Ssssions Judge or as the Additionai Sessions Judge and was not in a position to perform his judiciai duty. 10.As heid by the Supreme Court in ths matter of Kaiyan ChandraSarkar (supra), flnding of higher Court or coordinate Bench is binding by doctrine of judicia! discipiine. The Supreme Court in paras 19 and 20 observed as under- "19.The principtes of res judteata and such anatogous principies although are not applteabie in a criminai procsedfng, ' stil! the courts are bound faythe doctrine of judicial ciiscipiins having regard to the hierarehfcal system prevailing in oyr country. The findings of a higher court or a coordinate Bench must receive serious conslderation at the hands of the court entertaining a bai! appiication at a later stags when the same had been rejected earlier. in such an event, the courts must gjve due weight to the grounds which woighed with th©former or higher court in rejecting the baii appiteation. Ordsnarijy, the issues which had been canvassed earlier wouid not be permitted to be reagiiated on the same grounds, as fhe same wouid lead to a speculation and uncertainty in the administration ofjusttee and may iead to forum hunting. 20. The decisions given by superior forum, undoubtsdiy, are binding on the subordinate fora on the same issue sven in bai! matters uniess of course, there is a matsriai change in the tect situation calling for a different view being taken. Thsrefore, even though ther® is room for filing a subsequent bal! application in cases where earlier applications have been rejected, the same can be cione if there is a change in the fact situation or in iaw which requires the eariier view being interfered with or vrtiere the eariier finding hss becoms obsolete. This is the limited area in which an accused who has been denied baii eartier, can move a subsequent appiication. Therefore, we are not in agreement vwth the argument of ieamsd counssi for the accused that in view of the guarantee conferred on a person under Articto 21 of the Constitution, it is open to the aggrieved person io make successive bail applicattons even on a ground aiready rejectsd by the courts eariier, including the Apex Court of the Country." 11 .At the time of passing the order dated S.5.2009 by the then Ssssions Judge, Raipur, he was required to observs the doctrine of judiciai discipiine and he was required to piace the appiication reisting to cancellation of bai! order passed by the Third Addttional Ssssions Judgs before such ofRcer for consideration, but reason best known to the then Ssssions Judge ha has recailed the ordsr granting baii passed by the Third Additional SessiORS -^- Judge, Raipur. Same is contrary to !aw in the iight of dictum of the Suprsma Court in the matter of Vikramjii Singh (supra). 12-Whiie proceeding under Chapter XV of th®Code after receiving negativs rsport of Police, Judicia! iyiagistrate First Class, Raipur has not committed any iilegaiity but when the same wss chaiienged before the then Ssssions Judge and the then Sessions Judge has dirscted for registrafion of offence which was aiso contrary to law and even in case of dismissal of Gompiaint under Section 203 of ths Code. The order directing ragistration was quashed bythis Court. Inquirywas stiil pending before Judicia! Magistrat®First Class, Raipur. During the aforesaid period bail was granted by the Third Addifional Ssssions Judge and recailed by the then Sessions Judge. Recailingof bai! order was aiso chaiienged before this Court in Cr.M.P.No.256/2009. Sam® was disposed of vide order datsd 31.7.2009. Para 4 of the said order reads as under- "4.The order impugned and ordsr dated 14/5/09 passed by this Court in Criminal Misc. Petition No.247/2009 reveais that police has submitted the finai report bsfore the Magistraie that on the basis of investigation fiting of the charge sheet for taking cognizance against ths pressnt psfitioner is not possibte and on the basis of such fina! report even JudicSa! Magistrate First Ciass has not taken any cognizance the order directing her taMng cognizance by the Sessions Judge has aiready been quashed by this Court vide order a'ated 14/8/09. Thersfore ai present no any criminai case is psnding against the present petitioners or no offence has been registsred for taking cognizance against the present petitioners in which he require to furnish baii or continue in baii, with these observations the present petition is stands disposed of." 'iS.Virtualiy after quashment of order directing registration of the cass, no criminai case was pending before any Court against respondents No.2 to 4. There was no oecasion for granting or refusing their bail, therefore, no such order relating to canceiiation of bail was legaiiy in existencs and revivai of such order after passing fresh order of iaking cognizance, registration of criminal case and issuance of process was not legaiiy possifaie. The Sessions Judge, Raipur has not committed any iilegaiify in not considering the order dated 5.5.2009 passed by the then Sessions Judge, Raipur. Even the aforesaid order was in existence, even than same was contrary to iavv yf-' ~< deciared by the Supreme Court in the mattors of Kaiyan Chandra Sarkar (supra) and Vikramjit Singh (supra). Even for the sake of argument and decision it is considered that ths ordsr dated 5.8.2009 was in existenc®tben same was aiso contrary to iaw declared by the Suprsme Court in the mattars of Kaiyan Chandra Sarkar (supra) and Vikramjit Singh (supra) and still the order passed by the Third Additiona! Ssssions Judge granting bail was good and sustainabie under the iaw. 14.At the time of granting or re<using baii, the Courts ars requirsd to eonsider the gravity of the offence, as heid by the Supreme Court in the matter of Mohd. Sajid Husain Miohd. S. Husasn etc. (supra), whils granting bail the Sessions Judge has observed the gravity of offencs. 15.By granting baii to respondents No.2 to 4, the SsssSons Judge, Raipur has not comm'rtted any iliegality. Ths then Sessions Judgs was bcund by the prsvious order passed by a coordinate Sessions Judge i.&., Third Additiona! Sessions Judge under the doctrine of judicial disciptins. 16.For ths foregoing reasons, t do not find any scope for interference in the order impugned in exercise of extraordinary inhergnt jurisdiction in tsrms of Section 482 of the Cods. The petition is iiabls to be dismissed and it is hsrsby dismissed. — Sd/- T.P. Sharma Judge .^" /