Institution Of 2 Bail Petitions Arising Out Of The Same FIR By The Same Petitioner Is A Matter Of Serious Concern: HP HC Issues Slew Of Directions

In a latest, landmark and extremely laudable judgment titled Sunil Kumar v. The State of Himachal Pradesh in Case No. : Cr.MP(M) No. 1303 & 1321 of 2020 delivered just recently on August 31, 2020,  the Himachal Pradesh High Court expressed its concern over the case of the institution of two bail petitions arising out of the same FIR by the same petitioner. It is most heartening and refreshing to learn that the Bench of Justice Ms. Jyotsna Rewal Dua who authored this notable judgment also directed the Registrar General of the court to try and evolve software wherein filing of more than one bail petition in this Court by the same petitioner during the pendency of previous bail petition, arising out of same FIR can be detected and consequent steps can be taken at the threshold. Very rightly so!

To start with, the ball is set rolling in para 1 of this judgment wherein it is first and foremost specified that, “Two separate bail petitions under Section 439 of the Code of Criminal Procedure has been preferred by the same petitioner, i.e. Sunil Kumar, through two different lawyers. In both these petitions, prayer is for release of petitioner on bail in FIR No. 164 of 2019, registered on 01.11.2019 under Sections 20 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’) at Police Station Dharamshala, District Kangra, HP.”

While elaborating further on the two bail petitions, it is then pointed in para 2 that, “Facts regarding simultaneous filing of two bail petitions by one petitioner:-

2(i). Bail Petition, being CrMP(M) No. 1303 of 2020, was instituted through an e-mail on 04.08.2020 on a Power of Attorney signed by the petitioner with endorsement of the Assistant Superintendent Jail, Lala Lajpat Rai District & Open Air Correctional Home, Dharamshala, Himachal Pradesh, dated 14.07.2020. Alongwith this bail petition, an order passed on 02.01.2020 by the learned Special Judge-III, Kangra at Dharamshala, in Bail Application No. 1-D/2020, titled Atul Chambyal  Versus The State of Himachal Pradesh has been appended. Vide this order, Atul Chambyal, a co-accused in the FIR was enlarged on bail. Another order dated 14.07.2020 passed by the learned Special Judge-II, Kangra at Dharamshala, declining the bail application of the petitioner has also been appended. In para 26 of bail petition, an averment has been made that “no other same or similar pending application for the grant of bail save and except the bail application No. 171-D/XXII/2020, which was filed before the Ld. Special Judge-III, Kangrta at Dharmashala as mentioned at para-4 of the bail petition, and neither is the same or similar application/petition for grant of bail pending adjudication before any other Court of law including the Hon’ble Apex Court”. The bail petition is not supported by any affidavit.

2(ii). Second bail petition, being Cr.MP(M) No. 1321/2020, was also instituted through an e-mail on 06.08.2020. It is also on the power of attorney signed by the petitioner with the endorsement of the same Assistant Superintendent Jail, Lala Lajpat Rai District & Open Air Correctional Home, Dharamshala, Himachal Pradesh, dated 30.07.2020. Though no order or document has been appended alongwith the bail petition, but the petition records the factum of rejection of bail application of the petitioner by the learned Special Judge-II, Kangra at Dharamshala, vide order dated 14.07.2020 and enlargement on bail of co-accused Atul Chambyal by the learned Special Judge-III, Kangra at Dharamshala, vide order dated 02.01.2020. In para-9 of this petition, there is a specific averment to the effect that no similar petition had been previously preferred by the petitioner in this Court on same cause of action. It is apposite to reproduce para-9 of the second bail petition hereinafter:-

“9. That no such or similar petition has earlier been filed by the petitioner either in this Hon’ble Court or in the Hon’ble Supreme Court of India or any other court on the same cause of action except the one mentioned above which was dismissed by the Ld. Special Judge-II, Kangra at Dharamshala, District Kangra (H.P.) vide order dated 14.07.2020.”

This bail petition is also not supported by any affidavit.

2(iii). Both these petitions, i.e. Cr.MP(M) Nos. 1303 of 2020 and 1321 of 2020, were listed on 06.08.2020 and 07.8.2020, respectively and incidentally before this Court, when the respondent-State was directed to file status reports in both these matters before the next date of hearing, given as 19.08.2020 and 20.08.2020, respectively. On 19.08.2020, when the first bail petition (Cr.MP(M) No. 1303/2020) was listed, it was pointed out by the Court Reader that Cr.MP(M) No. 1321 of 2020, arising out of the same FIR, is listed on 20.08.2020. Resultantly, both the above petitions were ordered to be listed together on 20.08.2020. On 21.08.2020, both the learned counsel representing the same petitioner in separate bail petitions professed to have separate and positive instructions for proceeding ahead with their separate bail petitions. In view of emergence of serious related issues, Mr. Virender Singh Chauhan, learned Senior Counsel graciously accepted the request to assist as an amicus curiae in the matter.”

To put this in perspective, it is then pointed out in para 3 that, “During hearing of the case, learned counsel for the petitioner in Cr.MP(M) No. 1303 of 2020 stated that the brief was handed-over to him by a local lawyer, whereas learned counsel for the petitioner in Cr.MP(M) No. 1321 of 2020 submitted that he got the brief from the parents/relatives of the bail petitioner. How in quick succession and at whose instance, the Power of Attorneys of the petitioner (in custody) were obtained is not forthcoming. Learned Additional Advocate General has also stated at the bar that the Assistant Superintendent Jail, Lala Lajpat Rai District & Open Air Correctional Home, Dharamshala, Himachal Pradesh, has not maintained any record that at whose instance, he had endorsed, attested and issued two Power of Attorneys signed and thumb impressed by the same petitioner. While hearing of the case was in progress, learned counsel for the petitioner in Cr.MP(M) No. 1321 of 2020 requested for permission to withdraw the bail petition while marking his presence as counsel in Cr.MP(M) No. 1303 of 2020 alongwith the original counsel therein. This request was not opposed by learned counsel for the petitioner in Cr.MP(M) No. 1303 of 2020.”

More damningly, it is then stated ahead in this same para 3 that, “Institution of two bail petitions arising out of the same FIR by one petitioner is a matter of serious concern. Both these petitions have been filed almost simultaneously in this Court. Though, incidentally, these two petitions have been listed before this Court, but there was always a chance of theirs being listed in different Hon’ble Courts. This Court expresses concern over the misconduct of the bail petitioner in simultaneously filing two parallel bail petitions before this Court in the same case without divulging the complete details. The conduct of the petitioner is appalling. Filing of two petitions by same petitioner arising out of same FIR amounts to abuse of judicial process and is strongly condemned. The Court expresses its disapproval over the manner in which simultaneously two bail petitions have been filed in this Court and records its indignation. The Court was inclined to take action against such conduct. However, on the fervent request made by learned counsel for the petitioner(s) and supported by the learned Amicus Curiae, Cr.MP(M) No. 1321 of 2020 is ordered to be closed as withdrawn with strong warning to the petitioner/his relatives not to indulge in such activities in future.”

Most significantly, it is then underscored in this same para 3 ahead that, “However, before proceeding with the merits of the case in Cr.MP(M) No. 1303 of 2020, in order to ensure that such like incidents do not happen in future, following observations and consequent directions need to be noticed:-

3(a). Separate status reports in both these bail petitions have been filed by the respondent-State. These status reports are verbatim the same. There is no reference in either of the status reports about the same petitioner having filed another bail petition in this Court under the same FIR. These are serious lapses. It has also come to the notice of this Court that invariably, the status reports filed by the respondent-State do not reflect any history of previous bail petitions filed by the concerned petitioner. Such record should also be maintained by the investigating agency. It is necessary that the status report filed by the State should reflect details of all previous bail petitions filed by the petitioner irrespective of the fact whether the same were eventually withdrawn by him or not. Status reports should also clearly indicate criminal history of the accused persons involved in the FIR, as available with the investigating agency. Directed accordingly. Director General of Police, Himachal Pradesh, is therefore directed through the learned Additional Advocate General to forthwith issue necessary orders in this regard to all concerned and ensure compliance.

3(b). In bail matters, lawyers are being engaged, inter alia, on the basis of Power of Attorney of the accused (in custody) endorsed and attested by the Jail Superintendents. In the present case also, both the bail petitions were filed on the strength of petitioner’s Power of Attorneys attested and endorsed on different dates by the same concerned Jail Superintendent. Learned Additional Advocate General as noticed above, has submitted that no record had been maintained by the concerned Jail Superintendent with respect to execution of power of attorneys by the persons in custody. Maintenance of such records is essential not only to avoid situations like the present one, but also to prevent mischief which may be caused to the accused in custody. It is directed that henceforth all Jail Superintendents will maintain proper records with respect to identification of the person at whose instance the power of attorney of the person in custody was being attested and endorsed by the Jail Superintendents. The record amongst others should contain details of name/address/Aadhar Card detail/telephone numbers/relation with accused/purpose for obtaining power of attorney etc. The Director General of Prisons & Correctional Services, Himachal Pradesh, through the learned Additional Advocate General is directed to forthwith issue necessary orders in this regard to all the Jail Superintendents and ensure compliance.”

Briefly stated, the key point of para 3(c) which is equally significant is that, “The situations similar to the one arising in the instant case perhaps could have been avoided had it been mandatory to plead in the petition that on whose instructions, the bail petition was being moved. Learned Amicus Curiae suggested that the persons who are authorized by the accused in custody for moving the bail application should be directed to file their personal affidavit stating therein that they have been authorised by the bail accused to move the bail application. However, taking cognizance of the situation, which arose in the instant case and to avoid its repetition in future, the Registry of this Court through the learned Registrar General is directed to try and evolve a software wherein filing of more than one bail petition in this Court by the same petitioner during pendency of previous bail petition, arising out of same FIR can be detected and consequent steps can be taken at the threshold.”

To sum it up, this latest, landmark and laudable judgment of the Himachal Pradesh High Court very rightly observes that institution of two bail petitions arising out of the same FIR by the same petitioner is a matter of serious concern. To check this from happening regularly, the Himachal Pradesh High Court in this noteworthy case very rightly issues a slew of landmark directions which we have just discussed above. They must be followed in letter and spirit by all the courts and the Director General of Police must ensure that it is implemented in totality! There can be no denying it!

Sanjeev Sirohi