when anticipatory bail application is pending in the higher court Trial court cannot give regular bail Supreme Court

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s). 2411/2016
(Arising out of impugned final judgment and order dated 04-12-2015
in ABA No. 4049/2015 passed by the High Court of Jharkhand at
Ranchi)
RUKMANI MAHATO Petitioner(s)
VERSUS
THE STATE OF JHARKHAND Respondent(s)
(FOR APPOINT A GUARDIAN OF A MINOR ON IA 5323/2016
FOR [PERMISSION TO FILE ANNEXURES] ON IA 8357/2017)
Date : 03-08-2017 This matter was called on for hearing today.
CORAM :
HON’BLE MR. JUSTICE RANJAN GOGOI
HON’BLE MR. JUSTICE NAVIN SINHA
For Petitioner(s) Mr. Praveen Kumar, Adv.
Mr. Lakshay Dhamija, Adv.
Mr. Sahil Gupta, Adv.
Mr. Gautam Talukdar, AOR

For Respondent(s) Mr. Atulesh Kumar, AOR
UPON hearing the counsel the Court made the following
O R D E R
1. In the present special leave petition
(Crl) No.2411 of 2016 an order dated 04.12.2015 of
the High Court of Jharkhand refusing to grant
pre-arrest bail to the accused-petitioner was
challenged. On 04.04.2016 the following order was
passed by this Court :
“Issue notice.
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In the event the petitioner is arrested,
she may be released on bail by making deposit
of Rs.25,000/- in cash to the satisfaction of
the trial Court and shall co-operate with the
investigation at all further stages.”
2. Clearly and evidently the order dated
04.04.2016 is an interim order of granting
pre-arrest bail to the accused-petitioner.
3. It appears that on legal advice, the
petitioner surrendered before the learned Trial
Court on 21.04.2016 and thereafter released on
regular bail.
4. When the said fact was brought to the
notice of the Court, the order dated 18.04.2017 was
passed to the following effect :
“It is stated by the learned counsel for
the accused-petitioner that the petitioner
has surrendered before the learned Trial
Court and the said Court has granted her
regular bail.
By order dated 04.04.2016 this Court has
granted interim pre-arrest bail to the
accused-petitioner with the direction that
the accused-petitioner shall cooperate with
the investigation.
It appears that on 21.04.2016 the
accused-petitioner surrendered before the
learned Trial Court and in view of the
order dated 04.04.2016 passed by this Court
the learned Trial Court has granted regular
bail to the accused-petitioner. This is
evident from the certified copy of the
Order dated 21.04.2016 of the learned Trial
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Court, placed before us.
We do not see as to how or why the
petitioner could have surrendered before
the learned Trial Court and sought regular
bail when the proceedings in Special Leave
Petition (Crl.) No.2411 of 2016 were
pending before this Court.
We also do not understand how in view of
the pendency of the said proceedings before
this Court the learned Trial Court could
have granted regular bail to the
accused-petitioner.
In the aforesaid circumstance, we deem it
proper to recall our order dated 04.04.2016
granting pre-arrest bail to the
accused-petitioner and also to cancel the
bail granted to the accused-petitioner by
the learned Trial Court by its order dated
21.04.2016. The accused-petitioner shall
forthwith surrender before the learned
Trial Court. We also direct the Registrar
General of the Jharkhand High Court to
obtain explanation of the Presiding Officer
of the learned Trial Court which has passed
the order dated 21.04.2006 in case No.
GR-2786/2014 as to how the said Court could
have granted bail when this Court was in
seisin of the matter in Special Leave
Petition (Crl.) No.2411 of 2016.
The aforesaid explanation be placed
before the Court on or before 5th May, 2017.
List the matter on 5th May, 2017.”
5. On a mention being made on 09.05.2017
the Court had directed that the matter to be listed
after the summer vacation and in the meantime, if
the petitioner is not in custody, it was directed
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that she will not be arrested.
6. This is how the matter has come before
us.
7. Pursuant to our order dated 18.04.2017,
the explanation of the judicial officer concerned
has been forwarded to the Registry of this Court by
the Registrar General of the High Court of
Jharkhand.
8. We have perused the said explanation. We
have also read and considered the order dated
21.04.2017 passed by the said judicial officer
granting regular bail to the accused-petitioner. On
due consideration of the explanation submitted on
the order dated 21.04.2016, we are of the view that
regular bail was granted to the accused-petitioner
on a misconstruction of this Court’s order, which
misconstruction was a bonafide mistake on the part
of the judicial officer. The matter insofar as the
judicial officer is concerned is, therefore,
closed.
9. Coming to the case of the
accused-petitioner and her role and conduct in the
matter, we have perused the affidavit filed in this
regard by the petitioner. The stand taken therein
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is that the petitioner surrendered before the trial
Court and sought and was granted regular bail on
legal advice. In paragraph 8 of the affidavit, a
statement has been made that enquiries with the
local counsel have revealed that it has become a
regular practice for accused to surrender before
the learned trial Court and seek regular bail
immediately after interim pre-arrest is granted by
the higher forums.
10. When this Court or a High Court or even
a Sessions Judge grants interim anticipatory bail
and the matter is pending before that Court, there
can be no occasion for the accused to appear and
surrender before the learned trial court and seek
regular bail. The predicament of the subordinate
Judge in considering the prayer for regular bail
and the impossibility of denial of such bail in the
face of the pre-arrest bail granted by a higher
forum is real. Surrender and a bail application in
such circumstances is nothing but an abuse of the
process of law by the concerned accused. Once a
regular bail is granted by a subordinate Court on
the strength of the interim/pre-arest bail granted
by the superior Court, even if the superior Court
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is to dismiss the plea of anticipatory bail upon
fuller consideration of the matter, the regular
bail granted by the subordinate Court would
continue to hold the field, rendering the ultimate
rejection of the pre-arrest bail by the superior
Court meaningless.
11. If this is a practice that is prevailing
in some of the subordinate Courts in the Country
and we have had notice of several such cases, time
has come to put the learned subordinate Courts in
the country to notice that such a practice must be
discontinued and consideration of regular bail
applications upon surrender during the pendency of
the application for pre-arrest bail before a
superior Court must be discouraged. We, therefore,
direct that a copy of this order be forwarded to
the Director of all Judicial Academies in the
country to be brought to the notice of all judicial
officers exercising criminal jurisdiction in their
respective States.
12. Insofar as the present case is
concerned, we reiterate our order dated 18.04.2017
and recall our interim order(s) dated 04.04.2016
and 09.05.2017 as well as the order of regular bail
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granted by the learned trial Court dated 21.04.2016
and direct that the accused shall now surrender
before the learned trial Court within fifteen days
from today failing which the investigating agency
will apprehend the accused and take her into
custody.
13. We also make it clear that once the
accused is in custody, it will be open for her to
move an application for regular bail which as and
when moved will be considered on its own merits by
the Court of competent jurisdiction.
14. Special leave petition and all pending
application(s) are disposed of in the above terms.
(NEETU KHAJURIA)
COURT MASTER
(ASHA SONI)
BRANCH OFFICER