In a very significant move, we see that the Apex Court in a most learned, laudable, landmark and latest judgment titled Kusha Duruka vs The State of Odisha in Criminal Appeal No. 303 of 2024 (Arising out of S.L.P. (Crl.) No. 12301 of 2023) and cited in Neutral Citation No.: 2024 INSC46 and so also in 2024 LiveLaw (SC) 47 that was pronounced as recently as on January 19, 2024 has directed that all bail applications should “mandatorily” disclose the details of earlier bail applications filed by the accused, whether decided or pending. The Court also recorded that these suggestions are to streamline the proceedings and avoid anomalies. It also must be noted that the Court reiterated the direction issued in the landmark judgment in Pradhani Jani vs The State of Odisha 2023 LiveLaw (SC) 455 that all bail applications filed by different accused in the same case must be listed before the same Judge.
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Rajesh Bindal for a Bench of the Supreme Court comprising of Hon’ble Mr Justice Vikram Nath and himself sets the ball in motion by first and foremost putting forth in para 2 that, “This is another case in which an effort has been made to pollute the stream of administration of justice.”
As we see, the Bench states in para 10 that, “May be in the facts of the aforesaid case, this Court had accepted unconditional apology tendered by the appellant therein and the given facts situation accepted his apology but it is established that there is a consistent effort by the litigants to misrepresent the Court wherever they can.”
To put things in perspective, the Bench envisages in para 11 that, “The prayer in the present appeal is for grant of bail pending trial. The appellant claimed that he is in custody since 03.02.2022 in connection with crime FIR No. 29 dated 03.02.2022, at P.S. Orkel, District Malkaganj, Odisha registered under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The allegation in the FIR is that the appellant and the co-accused Gangesh Kumar Thakur @ Gangesh Thakur were in exclusive and conscious possession of 23.8 kg Ganja and were transporting the same.”
It is worth noting that the Bench notes in para 12 that, “The appellant and his co-accused Gangesh Kumar Thakur @ Gangesh Thakur filed an application for release on bail pending trial before the Sessions Judge-cum-Special Judge, Malkangiri immediately after their arrest on 03.02.2022. The same was rejected vide order dated 04.02.2022. At that stage even the chargesheet had not been filed.
12.1 Being aggrieved against the order of rejection of the bail application by the Sessions Judge, the appellant filed first bail application BLAPL No. 1855 of 2022 before High Court. While the same was pending the co-accused Gangesh Thakur also filed bail application BLAPL NO. 11709 of 2022 before the High Court. The High Court vide order dated 17.01.2023 allowed the bail application filed by Gangesh Kumar Thakur @ Gangesh Thakur. However, the bail application filed by the appellant was dismissed vide impugned order dated 06.03.2023. Aggrieved against the same, the appellant filed the SLP Special Leave Petition (Criminal) No. 12301 of 2023 before this Court. Notice in the same was issued on 22.09.2023. When the matter was listed on 08.11.2023, learned counsel for the State sought time to file counter affidavit. On 06.12.2023, the learned counsel for the appellant pointed out that during the pendency of the present matter before this Court, the High Court vide order dated 11.10.2023 had granted bail to the appellant. As he did not have hard copy of the order passed by the High Court, he placed before us a soft copy of the said order through his mobile phone. On a reading of the aforesaid order, this Court found that the same neither mentioned the fact that it was the second bail application BLAPL No. 10860 of 2023 filed by the appellant nor pendency of the SLP before this Court, in which notice had already been issued. Taking the matter seriously and deprecating such a practice this Court passed the following order on 06.12.2023:
“This petition has been filed assailing the correctness of order dated 6th March, 2023 passed by the High Court of Orissa at Cuttack in BLAPL No. 1855 of 2022, ‘Kusha Duruka Versus State of Odisha’ whereby the prayer for bail was rejected. Notice was issued by this Court on 22nd September, 2023.
Today the learned counsel for the petitioner informs this Court that during the pendency of this petition, the High Court has granted bail to the petitioner on 11th October, 2023. He has placed before us a soft copy of the said order through his mobile, according to which BLAPL No. 10860 of 2023 was allowed apparently on the ground of parity extended to another co-accused.
From reading of the said order, we find that it neither mentions that it was the second bail application filed by the petitioner before the High Court nor does it reflects any reference to the petition pending before this Court in which notice had already been issued in September, 2023.
We seriously deprecate such practice by the litigant and the counsel.
We accordingly, direct that original record of the said bail application, allowed by the High Court on 11th October, 2023, be called for forthwith.
We further direct that this order be communicated to the Hon’ble Chief Justice as also the Registrar of the High Court of Orissa forthwith (today itself) and the aforementioned file of BLAPL No. 10860 of 2023 titled ‘Kusha Duruka Versus Versus State of Odisha’ be immediately sealed and thereafter be forwarded to this Court.
We also request the Hon’ble the Chief Justice to obtain comments of the learned Judge as to whether he was apprised of the aforesaid two facts as recorded earlier in this order regarding the bail application being the second bail application and the secondly the pendency of the present petition.
The State of Odisha will also file its comments as to whether the public prosecutor appearing for the State of Odisha pointed out such facts or not.
The report shall be submitted by the Secretary, Department of Law and Justice of the State of Odisha as also by the Joint Secretary or the Additional Secretary (Law) attached to the High Court.
List this matter again on 13th December, 2023.”
Most significantly, the Bench mandates in para 20 directing that, “In our opinion, to avoid any confusion in future it would be appropriate to mandatorily mention in the application(s) 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.”
For clarity, the Bench clarifies in para 21 that, “Our suggestions are with a view to streamline the proceedings and avoid anomalies with reference to the bail applications being filed in the cases pending trial and even for suspension of sentence.”
Further, the Bench specifies in para 22 stating that, “Though considering the conduct of the petitioner, one of the option available was to cancel his bail, however, we do not propose to take such an extreme step in the case in hand. However, this can be the option exercised by the Court if the facts of the case so demand seeing the conduct of the parties.”
Furthermore, the Bench directs in para 23 holding that, “The present appeal is, accordingly, dismissed as infructuous. However, still we deem it appropriate to burden the appellant with a token cost of Rs 10,000/-, which shall be deposited by him with Mediation and Conciliation Centre, attached to Orissa High Court, within a period of eight weeks from today. Within two weeks thereafter, proof of deposit be furnished in this Court.”
What’s more, the Bench also directs in para 24 that, “A copy of the order be sent to the Registrars General of all the High Courts to be placed before the Chief Justices for correction of the system, wherever required, as this Court comes across similar issues from different High Courts.”
Finally, the Bench then concludes by directing in para 25 that, “The original record received from the High Court be sent back.”
All told, the guidelines that have been issued by the Apex Court in this leading case must be strictly implemented. It is also made clear by the Supreme Court that details of previous bail applications and orders in all bail pleas must be mentioned. No denying it!
Sanjeev Sirohi
