SUPREME COURT DECIDES UPON THE DECEPTIVE PRACTICES IN BAIL PROCEEDINGS

INTRODUCTION

A two-Judge Bench of the Supreme Court comprising of Justice Vikram Nath and Justice Rajesh Bindal passed an Order dated 19.01.2024 in Criminal Appeal No. 303 Of 2024 (Arising Out Of S.L.P. (CRL.) No. 12301 Of 2023) in Kusha Duruka Vs. The State Of Odisha and held that suppression of material facts from a Court amounts to playing of fraud with the Court.

FACTS

i) That an FIR No. 29 of 2022 dated 03.02.2022 was registered at the Police Station Orkel, District Malkangiri, Odisha, under Section 20(b) (ii) (c) of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS) (Punishment for contravention in relation to cannabis plant and cannabis) against the Appellant- Kusha Duruka and another co-Accused- Ganesh Kumar Thakur for possession and transportation of 23.8 kgs of Ganja.

ii) That the Appellant and the co-Accused were arrested on the same day.

iii) That on 04.02.2022, the Appellant and the co-Accused, filed the first Bail Application which was rejected by the Ld. Sessions Judge-cum Special Judge, Malkangiri in Special G.R. Case No.38/2022.

iv) Aggrieved by the Order in Special G.R. Case No.38/2022, the Appellant approached the High Court of Orrisa at Cuttack for the grant of bail by filing a Bail Application bearing BLAPL NO. 1855 of 2022.

v) The co-Accused also approached the High Court for the grant of bail by filing a Bail Application bearing BLAPL NO. 11709 of 2022.

vi) Further, the Bail Application filed by the co-Accused was allowed vide Order 17.01.2023 and was released on bail. But the Bail Application filed by the Appellant was rejected, vide Order dated 06.03.2023.

vii) Aggrieved by the Order dated 06.03.2023 of the High Court of Orrisa at Cuttack, the Appellant filed L.P. (CRL.) No. 12301 Of 2023 before the Supreme Court.

SUPREME COURT ANALYSIS

The Apex Court vide Order date 19.01.2024, made the following observations:

1) That while the decision was pending before the Supreme Court, the Appellant filed a second bail Application before the High Court on 21.09.2023 which was allowed by the High Court.

2) That the Apex Court enquired about how there was an Order passed by the High Court in the second bail Application when the matter was pending before the Supreme Court and a report was called before the Supreme Court from the Government.

3) The Bench observed that the Principal Secretary in the State Law Department filed an Affidavit on 11.12.2023 before the Supreme Court stating that the Counsel appearing for the State in the High Court neither knew the matter pending before the Apex Court nor about the dismissal of the first Bail Application.

4) That the Bench observed that this was another example of a case wherein there was an attempt made to contaminate the administration of justice. The Supreme Court relied on a previous judgment in Chandra Shashi v Anil Kumar Verma [(1995) 1 SCC 421] wherein the Apex Court observed as under:

“1. The stream of administration of justice has to remain unpolluted so that purity of Court’s atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are, therefore, required to be well taken care of to maintain the sublimity of Court’s environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned.

2. Anyone who takes recourse to fraud, deflects the course of judicial proceedings; or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice.

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14. The legal position thus is that if the publication be with intent to deceive the court or one made with an intention to defraud, the same would be contempt, as it would interfere with administration of justice. It would, in any case, tend to interfere with the same. This would definitely be so if a fabricated documents is filed with the aforesaid mens rea. In the case at hand the fabricated document was apparently to deceive the court; the intention to defraud is writ large. Anil Kumar is, therefore, guilty of contempt.”

5) The Apex Court also relied on Pradhani Jani Vs. the State of Odisha in Criminal Appeal No.1503/2023 wherein the Supreme Court observed that:

“2. The subsequent bail applications under section 439 Cr.P.C. including applications for interim bail shall be listed before the Hon’ble Judge who, at the earliest, decided any of the earlier bail applications under section 439 Cr.P.C. arising out of the same FIR (decided on merit or disposed of as withdrawn/not pressed). In the event the Hon’ble Judge is not available on account of superannuation, transfer etc. or recuses, the said application shall be listed before the Hon’ble Judge who next disposed of any of those bail applications, and so on. If none of the Hon’ble Judges who decided the earlier bail applications is available, the application shall be listed before the regular Bench as per roster.

“3. The perusal of the paper books would reveal that various applications filed by various accused have been entertained by different learned Single Judges of the same High Court. In many of the High Courts, the practice followed is that the applications arising out of the same FIR should be placed before one Judge. However, it appears that it is not the practice in Orissa High Court. In the present case, we have come across orders passed by at least three different Judges in the applications of various accused arising out of same FIR.

4. Such a practice leads to anomalous situation. Certain accused are granted bail whereas certain accused for the very same crime having similar role are refused bail.

5. We, therefore, quash and set aside the impugned order dated 31.01.2023 and remand the matter back to the High Court. The High Court is requested to consider the effect of the orders passed by the other coordinate Benches and pass orders afresh. The same shall be done within a period of one month from today.

6. The Registrar (Judicial) of the Registry of this Court is directed to forward a copy of this order to the Registrar General of the Orissa High Court, who is requested to take note of the aforesaid and consider passing appropriate order so that contrary orders in the same crime are avoided.”

6) The Apex Court further observed that it was the duty of the Investigating Officer or the Police Officer assisting the Prosecution to apprise the Court about past orders, bail applications, or other proceedings in the same criminal case and directed the lawyers appearing for parties before the Court to conduct themselves like officers of the Court.

7) The Supreme Court further observed that it would be appropriate to mandatorily mention in the Application filed for grant of bail:

(1) Details and copies of order(s) passed in the earlier bail application(s) filed by the petitioner which have been already decided.

(2) Details of any bail application(s) filed by the petitioner, which is pending either in any court, below the court in question or the higher court, and if none is pending, a clear statement to that effect has to be made. This court has already directed vide order passed in Pradhani Jani’s case (supra) that all bail applications filed by the different accused in the same FIR should be listed before the same Judge except in cases where the Judge has superannuated or has been transferred or otherwise incapacitated to hear the matter. The system needs to be followed meticulously to avoid any discrepancies in the orders. In case it is mentioned on the top of the bail application or any other place which is clearly visible, that the application for bail is either first, second or third and so on, so that it is convenient for the court to appreciate the arguments in that light. If this fact is mentioned in the order, it will enable the next higher court to appreciate the arguments in that light.

(3) The registry of the court should also annex a report generated from the system about decided or pending bail application(s) in the crime case in question. The same system needs to be followed even in the case of private complaints as all cases filed in the trial courts are assigned specific numbers (CNR No.), even if no FIR number is there.

(4) It should be the duty of the Investigating Officer/any officer assisting the State Counsel in court to apprise him of the order(s), if any, passed by the court with reference to different bail applications or other proceedings in the same crime case. And the counsel appearing for the parties have to conduct themselves truly like officers of the Court.

SUPREME COURT ORDER

The Supreme Court, after going through the facts of the case held that considering the conduct of the Appellant, one option available was to cancel the bail, however, the Court did not propose to take such an extreme step in this case. However, this can be the option exercised by the Apex Court if the facts of the case so demand seeing the conduct of the parties.

The present Appeal was dismissed as infructuous. The Supreme Court however deemed it appropriate to burden the Appellant with a token cost of Rs. 10,000/- which would be deposited by the Appellant with Mediation and Conciliation Centre, attached to Orissa High Court, within a period of eight weeks from 19.01.2024 and also furnish within two weeks, proof of deposit to the Supreme Court.

 

Kartik Khandekar

Associate

The Indian Lawyer