Filing of Bail Applications Successively- Curbing Forum Shopping

Jagmahon Bahl and Anr. v. State of NCT of Delhi and Anr.

Recently, the Supreme Court had given an important ruling intending to curb the practice of forum shopping amongst lawyers, where they would after getting a bail application rejected/accepted from one judge, the aggrieved party (can be accused or prosecutor or complainant) would again file a similar bail application before another judge.

I. Facts of the Case

The appellants had earlier moved an application u/§ 438 CrPC for grant of anticipatory bail which was dismissed by one judge. Thereafter, the appellants after expiry of three weeks filed 2^nd application u/§ 438 Cr.PC which came to be considered by another judge, while the earlier judge who had decided the previous bail application was still available.

II. Decision in the Case

The Court categorically stated that such practice was not consistent with the judicial discipline which must be maintained by Courts both in the interest of administration of justice by assuring the binding nature of an order which becomes final, and the faith of the people in the judiciary.

Therefore, the Judge who has declined to entertain the prayer for grant of bail, if available, should hear the second bail application or the successive bail applications, as such practice is in consonance with the principle of judicial decorum, discipline and propriety.

Here, it is important to note that the acceptance of 2^nd bail application by another judge, i.e., when the 1^st application has been rejected by a different judge, “is a bail order passed in a perverse manner excluding the relevant matters”. Such ground of cancellation of bail order is different from the cancellation of the order of bail because of violation of the terms and conditions of the order granting bail and other supervening circumstances.

However, an obvious exception is provided in cases where a Judge has demitted the office or has been transferred. In such cases, the earlier judge was obviously “not available”.

III. Conclusion

It is obvious that the phrase “not available” can be construed to include where judges are on holidays. Though such cases are bound to happen, the judgment, however, is a welcome reminder for the lower Courts to uphold the judicial discipline of respecting one judge’s opinion and introduce a modicum of certainty in the decision making.