Dismissed

Mustakim v. State of U.P.

Allahabad HC15 Nov 2021BAIL/18079/2021

Case brief

AI extract

What is this about?

Rejects second bail application as no new facts or changed circumstances exist. Court overrules Gama v. State of U.P. regarding implied consideration and notes gravity of offences.

What did the court decide?

Bail application rejected.

What the court decided

AI extract

Mustakim Vs State of U.P. — Child Sexual Offences (POCSO) | Allahabad HC (2021)

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7. Liberty occupies a place on pride in our socio-political order. And who knew the value of liberty more than the founding fathers of our Constitution whose liberty was curtailed time and again under Draconian Laws by the colonial rulers. That is why they provided in Article 21 of the Constitution that no person shall be deprived of his personal liberty except according the procedure established by law. It follows therefore that the personal liberty of an individual can be curbed by procedure established by law. The Code of Criminal Procedure, 1973, is one such procedural law. The law permits curtailment of liberty of antisocial and anti-national elements. Article 22 casts certain obligations on the authorities in the event of arrest of an individual accused of the commission of a crime against society or the Nation. In cases of under-trial charged with the commission of an offence or offences the Court is generally called upon to decide whether to release him on bail or to commit him to jail. This decision has to be made, mainly in non-bailable cases, having regard to the nature, of the crime, the circumstances in which it was committed, the background of the, accused, the possibility of his jumping bail, the impact that his release may make on the prosecution witnesses, its impact on society and the possibility of retribution, etc. In the present case the successive bail applications preferred by the respondent were rejected on merits having regard to the gravity of the offence alleged to have been committed. Once such application No. 36 of 1989 was rejected by Suresh, J. himself. Undeterred the respondent went on preferring successive applications for bail. All such pending bail applications were rejected by Puranik, J. by a common order on 6th June, 1989. Unfortunately Puranik, J. was not aware of the pendency of yet another bail application No. 995/ 89 otherwise he would have disposed it of by the very same common order. Before the ink was dry on Puranik J.'s order, it was upturned by the impugned order. It is not as if the Court passing the impugned order was not aware of the decision of Puranik, J. in fact there is a reference to the same in the impugned order. Could this be done in the absence of new facts and changed circumstances? What is important to realise is that in Criminal Application No. 375 of 1989, the respondent had made an identical request as is obvious from one of the prayers (extracted earlier) made therein. Once that application was rejected there was

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no question of granting a similar prayer. That is virtually overruling the earlier decision without there being a change, in the fact situation. And, when we speak of change, we mean a substantial one which has a direct impact on the earlier decision and not merely cosmetic changes, which are of little or no consequence. Between the two orders there was a gap of only two days and it is nobody's case that during these two days drastic changes had taken place necessitating the release of the respondent on bail. Judicial discipline, propriety and comity demanded that the impugned order should not have been passed reversing all earlier orders including the one rendered by Puranik, J, only a couple of days before, in the absence of any substantial change in the fact-situation. In such cases it is necessary to act with restraint and circumspection so that the process of the& Court is not abused by a litigant and an impression does not gain ground that the litigant has either successfully avoided one judge or selected another to secure an order, which had hitherto eluded him. In such a situation the proper course, we think, is to direct that; the matter! be placed before the same learned Judge who disposed of the earlier applications. Such a practice or convention would prevent abuse of the process of Court inasmuch as it will prevent an impression being created that a litigant is avoiding or selecting a Court to secure an order to his liking. Such a practice would also discourage the filing of successive bail applications without change of circumstances. Such a practice if adopted would be conducive to judicial discipline and would also save the Court's time as a judge familiar with the facts would be able to dispose of the subsequent application with despatch. It will also result in consistency. In this view that we take we are fortified by the observations of this Court in paragraph 5 of the judgment in Shahzad Hasan Khan v. Ishtiaq Hasan Khan (1987) 2 SCC 684 . For the above reasons we are of the view that there was no justification for passing the impugned order in the absence of a substantial change in the fact-situation. That is what prompted Shetty, J. to describe the impugned order as 'a bit out of the ordinary.' Judicial restraint demands that we say no more.

Mustakim v. State of U.P.

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Mustakim v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Netrpal Singh Vs State of U.P. Thru D.M. and 2 Others

Smt. Gayatri Devi Vs Smt. Nanki and 18 Others

Rajeev Vs the State of U.P. and 3 Others

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