Mandatory for those seeking bail to mention if plea moved before any superior court: HC

HEARING A bail plea wherein the accused-petitioner had concealed certain facts from it as well as a lower court, the Punjab and Haryana High Court, taking suo motu cognizance, issued directions to Punjab, Haryana and Chandigarh that it will be mandatory to mention in the application whether such or similar application for bail has been made before any superior court.

The bench of Justice Manjari Nehru Kaul also said, “In case of any lapse/default on the part of the investigating agency/prosecution in the said regard, it would be construed to be fraud played upon the court, which could invite departmental as well as penal action against the erring parties/officials, as the case may be.”

The bench was hearing the bail plea of one Vijay Kumar, who had moved HC seeking bail in connection with an FIR registered on August 28, 2020, under Sections 454 (house-trespass or house-breaking in order to commit offence) and 380 (theft in dwelling) of IPC registered at Hajipur police station, Hoshiarpur. The petitioner, however, at a previous hearing sought for withdrawal of the instant petition on the ground that the petitioner had since been released on bail vide order dated June 15, 2021, of JMIC Mukerian. In this background, the HC sought a report from the lower court as to how the petitioner had been extended the concession of bail during the pendency of the instant petition.

The lower Court (JMIC Mukerian), submitted the report as per which the petitioner approached the trial court for grant of regular bail under section 437 Cr.PC by misrepresenting and concealing the facts of the instant petition at HC, having been filed and still pending consideration before HC. As per the bail application filed under Section 437 Cr.PC by the petitioner on June 8, 2021, as well as the affidavit of the mother of the petitioner clearly stood revealed that the pendency of the instant petition was concealed from the court below.

Justice Kaul, after a perusal of the contents of the bail application and affidavit, said that, “It makes abundantly clear that a fraud has been played not only upon the court below but also this court inasmuch as the instant petition was filed on May 25, 2021 by way of second petition under Section 439 Cr.PC and on the other hand an application seeking concession of bail under Section 437 Cr.PC was filed subsequently on June 8, 2021 before the court below by cleverly concealing the pendency of the instant petition. In the circumstances, it is evident that there has been blatant concealment and misrepresentation of facts while moving the application under Section 437 Cr.PC on June 8, 2021. The court below cannot thus be held responsible for any judicial over-reach much less impropriety in entertaining the application filed under Section 437 Cr.PC on June 8, 2021 and thereafter extending the concession of bail to the petitioner.”

The bench meanwhile dismissed the petitioner’s plea seeking withdrawal of the instant petition at HC, and taking suo motu take cognizance of the fraud, issued notice to the petitioner as to why the bail granted to him by the court below vide order dated June 15, 2021, be not cancelled, for which the counsel for petitioner accepted notice for August 18, 2021.

Justice Kaul said it has come to the notice of this court that during the pendency of a petition under Section 439 Cr.PC before this court, in some cases, the accused have clandestinely approached the trial court seeking similar relief in the matter of bail by either concealing the factum of the pendency of a petition under Section 439 Cr.PC before this court or by misrepresenting facts. Such malpractices which are being indulged in, are a matter of serious concern which deserve to be nipped in the bud at the earliest.

The bench thus ordered the two states and UT that in each and every case when an application for bail is made before the courts below, under any of the provisions of the Code of Criminal Procedure, it shall be mandatory to mention in the application as to whether such or similar application for bail under any of the provisions of Code of Criminal Procedure has or has not been made before any superior court, and if at all, a superior court has been approached for similar relief, the result thereof.

Also, “An application, which does not contain the aforementioned information shall not be accepted/entertained and would be returned for resubmission with the necessary information.”

The bench also clarified that the public prosecutors/prosecuting agency shall be duty bound to apprise the court concerned (before whom the bail application has been moved), after collecting the necessary information from the investigating officers with respect to the filing of any application/petition before any court, seeking concession of bail under the provisions of Code of Criminal Procedure and the result thereof.