Raja Elango, City Public Prosecutor, Chennai vs State

M. Karpagavinayagam, J.—Mr. Raja Elango, the contemner herein, who is City Public Prosecutor, Chennai, is facing the contempt proceedings initiated by this Court for having made averments in his affidavit dated 20.8.1997 filed in this Court, which are contemptuous and sweeping and are derogatory in character, wounding the dignity of this Court.

In the words of Honourable Justice S. Ratnavel Pandian, as he then was in Supreme Court, the maxim "Salus populi suprema lex", that is, "the welfare of the people is the supreme law" adequately enunciates the idea of law. This can be achieved only when justice is administered lawfully, judicially, without fear or favour and without being hampered and thwarted, and this cannot be effective unless respect for it, is fostered and maintained."

Justice Krishna Iyer in Re.S. Mulgaokar (A.I.R. 1978 SC 727) stated thus:

"...if the Court considers the attack on the judge or judges scurrilous, offensive, intimidatory or malicious beyond condonable limits, the strong arm of the law must, in the name of public interest and public justice, strike a blow on him who challenges the supremacy of the rule of law by fouling its source and stream".

Justice Ahmadi in M.B. Sanghi, Adv. Vs. High Court of Punjab and Haryana and others, observed thus:

"When a member of the profession resorts to such cheap gimmicks with a view to browbeating the Judge into submission, it is all the more painful. When there is a deliberate attempt to scandalise which would shake the confidence of the litigating public in the system, the damage caused is not only to the reputation of the concerned judge but also to the fair name of the Judiciary. ....It is high time that we realise that the much cherished judicial independence has to be protected not only from the Executive or the Legislature but also from those who are an integral part of the system."

Chinnappa Reddy, J. in Advocate-general, State of Bihar Vs. Madhya Pradesh Khair Industries and Another, stated thus:

"The Court has the duty of protecting the interest of the public in the due administration of justice and, so, it is entrusted with the power to commit for Contempt of Court, not in order to protect the dignity of the Court against insult or injury as the expression "Contempt of Court" may seem to suggest, but to protect and to vindicate the right of the public that the administration of justice shall not be prevented, prejudiced, obstructed or interfered with."

Justice Thakkar observed in L.D. Jaikwal Vs. State of U.P., as follows:

"We are sorry to say, we cannot subscribe to the ''slap-say sorry-and forget'' school of thought in administration of contempt jurisprudence. Saying ''sorry'' does not make the slapper poorer. Nor does the cheek which has taken the slap smart less upon the said hypocritical word being uttered through the very lips which not long ago slandered a judicial officer without the slightest compunction."

From the above judicial pronouncements of the Apex Court, it is manifestly clear that the strong arm of the law must, in the name of public interest and public justice, strike a blow on the contemner, in order to preserve the dignity of the Court and no one can claim immunity from the operation of the law of contempt, if his act or conduct is calculated to obstruct the due course of justice.

However, as popularly known, the Judiciary has got wide powers, but the greater the power, the greater the restraint. The famous Shakespeare says: "It is excellent to have a giant''s strength but it is tyrannous to use it like a giant."

The great Tamil saint Thiruvalluvar says:

Translation of his by Yogi Suddhananda Bharati is:

Wield fast the rod but gently lay This strict mildness prolongs the sway.

The Judge is one, who having equitably examined any injustice, suitably punishes it, so that it may not be again committed. The Court may be tough in posture, but it has to be merciful in operations. So, let the Courts brandish the rods smartly but lay it on soft. This is a real concept of justice in these days of judicial activitism.

In this petition for contempt, in my considered view, the above concept would serve the purpose, because Mahatma Gandhi said: "Conversion is our motto, not coercion... Conversion is a fruit of non-violence and love". Therefore, I would like to deal with the contemner in this petition with mercy, of course with strict mildness, with a view to make him to get into the process of conversion.

In this case, in pursuance of a show cause notice issued by this Court on 29.8.1997, the contemner Mr. Raja Elango, the City Public Prosecutor, Chennai, appeared in this Court and filed an affidavit on 26.9.1997 and another affidavit on 23.10.1997 tendering unconditional apology for what he had stated in his earlier affidavit dated 20.8.1997 and requesting this Court to accept the apology, pardon him and drop all further proceedings in the above matter. He has also expressed in open Court regret for the act that he had committed and requested this Court to accept his unqualified apology.

Though the statement made by him in the affidavit dated 20.8.1997 is a clear contempt of this Court, as I observed in my show cause notice dated 29.8.1997, in view of the request with trappings of sincerity made to this Court by the contemner to accept his unconditional and unqualified apology and pardon him, I deem it fit and proper to accede to his request and drop all further proceedings in the above contempt matter with a fond hope that there would be no recurrence of this nature by the contemner, especially when I feel that the contemner has fully realised that he made a grave blunder in filing such an affidavit in this Court.

In a similar situation, in 1994 CriLJ 2391, Dashrath Baburao Sangale and others v. Kashimath Bhaskar Datta Justice Jayachandra Reddy on behalf of the Bench would observe that if the apology is found to be unqualified and unconditional and the same is bona fide, it could be accepted and the contemners could be discharged.

Furthermore, the Presidents of Advocates'' Association, Bar Association, Women Lawyers'' Association, all would request this Court to accept his apology, so that an opportunity could be given to him to mend his way and act suitably in the future.

One other thing, I must point out in this context. When the City Public Prosecutor was asked to come and give clarification before this Court, as to why he said no objection, despite the High Court''s order, he could have requested the State Public Prosecutor to appear on his behalf to make necessary clarification. This was not done. Furthermore, the State Public Prosecutor was not even consulted by the City Public Prosecutor, the contemner before filing the affidavit dated 20.8.1997, the subject matter of this contempt application. It is quite unfortunate. If the State Public Prosecutor was contacted and consulted even on the first hearing, this ugly picture would not have been happened. But, the State Public Prosecutor though pointed out by citing various authorities that the City Public Prosecutor ought to have brought to the notice of the Sessions Court about the earlier High Court''s dismissal order and then made his submission, has now with all humility out of magnanimity joined the other Associations in requesting this Court to accept his apology and drop the contempt proceedings initiated against him, in spite of the fact that he was initially ignored by contemner.

Therefore, as I feel that his tendering of unconditional and unqualified apology is a bona fide one, I could accept his apology and accede to his request for pardon, since the noblest punishment is forgiveness. Accordingly, Mr. Raja Elango, the City Public Prosecutor, Chennai, is pardoned and the contempt proceeding initiated against him is hereby dropped.

However, in view of the chequered history in this case, I would propose to give some guidelines regarding the conduct of the subordinate Judiciary and the duty of the Public Prosecutor, while dealing with the bail applications, which were already disposed of by the High Court in the light of facts of this case, as suggested by the Presidents of various Law Associations, who appeared before this Court on its request, by quoting various citations of this Court, other High Courts and the Apex Court.

Before dealing with such guidelines, it would be better to recapitulate the facts and circumstances and chronological events which took place in this case.

On 8.6.1997, three accused persons, by name, (1) Jeevarathinam, (2) Kanniappan, (3) Selvam alias Selvakumar, while they were found in possession and distributing large quantity of fifty rupee counterfeit notes, were arrested by the Inspector of Police, CB CID, in Crime No. 8/97 registered for the offence u/s 489(B) and (C) I.P.C.

The first accused Jeevarathinam, on 14.6.1997 filed an application for bail before the Principal Sessions Judge, Chennai in Crl.M.P. No. 4179 of 1997. The other two accused, namely, Kanniappan and Selvam filed bail applications in Crl.M.P. Nos. 4214 and 4289 of 1997. All these applications were dismissed by the Principal Sessions Judge on 18.6.1997 by giving detailed reasons, after hearing the City Public Prosecutor.

Thereafter, these three persons filed bail application before this Court in Crl.O.P. No. 7992 of 1997. When this application came up before me, this was opposed by the Public Prosecutor of this Court on the ground that these persons were indulging in distributing the fake notes in huge quantity for a long time by collecting the same from one other main accused at Bangalore and that the main accused had to be arrested. After hearing the submissions by the counsel on either side and on perusal of the case diary, I dismissed the application on 30.6.1997 holding that the Petitioners could not be released on bail having regard to the gravity of the offence.

On 23.7.1997, one of the three accused, viz., Jeevarathinam again filed an application for bail in Crl.M.P. No. 5386 of 1997 before the Principal Sessions Court, Chennai. In the said petition, it was mentioned that earlier the bail was moved before this Court and the same was dismissed by the order dated 30.6.1997. However no change of circumstance was mentioned in the said petition. This matter came up before the learned Principal Sessions Judge on 24.7.1997. After hearing the counsel as well as the City Public Prosecutor, the learned Principal Sessions Judge passed an order granting bail on the ground that prosecution has not raised any serious objection. In this order, the Principal Sessions Judge has not referred about the earlier order passed by this Court nor any change of circumstance.

Therefore, the counsel for the accused filed an application for bail for co-accused Selvam before this Court in Crl.O.P. No. 9607 of 1997. When this application came up for consideration on 31.7.1997, the counsel for the Petitioner, while praying bail for the co-accused Selvam, brought to my notice that the co-accused Jeevarathinam was already released on bail by the Principal Sessions Judge by his order dated 24.7.1997. The order copy also was produced for perusal. After perusal, this Court felt that the learned Principal Sessions Judge granted bail merely because the City Public Prosecutor has not raised any serious objection, despite the order of dismissal by this Court earlier and so this Court called for explanation from the Principal Sessions Judge, by an order dated 31.7.1997.

Pursuant to the above direction, the learned Principal Sessions Judge sent the remarks stating that since the City Public Prosecutor did not raise any serious objection, he granted bail. Even in the said remarks, the Principal Sessions Judge did not give the reason as to why the High Court''s order was ignored. Therefore, on 13.8.1997, in order to know from the City Public Prosecutor, under what circumstances, he had to say ''No objection'', despite the order of the High Court, this Court issued notice to the City Public Prosecutor to appear before this Court and give clarification in order to take further action, and the matter was posted to 20.8.1997.

On 20.8.1997, the learned City Public Prosecutor appeared and admitted that he did not go through the order of this Court, but even then he said that he has got a prerogative right to say ''no objection'' in the bail application. Therefore, he was asked to file an affidavit to that effect. Accordingly, he filed an affidavit containing various averments, which have given rise to the issue of ''notice of contempt'' to the City Public Prosecutor.

I need not delve into the details of those averments, which are clearly contempt of Court, in view of my conclusion referred earlier that the contemner could be admonished and the proceeding can be dropped. But, while I issued the show cause notice to the contemner, I also intended to hear about the views of the Bar with reference to the conduct of the subordinate Judiciary and the Public Prosecutor, when they deal with the bail applications, especially when they were considered and disposed of by the High Court. of late, this Court in informed frequently that even in grave offences bail is being granted by the subordinate Judiciary, despite the dismissal order of this Court.

On receipt of the notice, the Public Prosecutor of this Court, the Chairman of Bar Council of Tamil Nadu, the President of Advocates'' Association and Bar Federation, the President of Bar Association, the President of Women Lawyers'' Association and the Vice-President of Law Association, City Civil Court, appeared and elaborately dealt with the above aspect in their neat presentation by quoting various authorities touching upon this subject. Therefore, my main endeavour in this contempt application would be rather than dealing with the act of contempt committed by the City Public Prosecutor of Chennai before this Court, to formulate the Code of conduct, which has to be scrupulously followed by the Members of the Bar, the Public Prosecutors of the Districts and the State and the various Courts situated in the whole State, so that at least, in the future, the sad state of affairs, as held in this case, would not get repeated.

Let me, at the outset, deal with the role of Public Prosecutor, while he is discharging duty as an Officer of the Court, while conducting judicial proceedings.

The following are the guidelines on the Role of Prosecutors, Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held on 27.8.1990 at Havana:

Whereas Prosecutors play a crucial role in the administration of justice, and rules concerning the performance of their important responsibilities should promote their respect for and compliance with the above-mentioned principles, thus contributing to fair and equitable criminal justice and the effective protection of citizens against crime.

Whereas it is essential to ensure that Prosecutors possess the professional qualifications required for the accomplishment of their functions, through improved methods of recruitment and legal and professional training, and through the provision of all necessary means for the proper performance of their role in combating criminality, particularly in its new forms and dimensions.

Persons selected as Prosecutors shall be individuals of integrity and ability, with appropriate training and qualifications.

Prosecutors have appropriate education and training and should be made aware of the ideals and ethical duties of their office, of the constitutional and statutory protections for the rights of the suspect and the victim, and of human rights and fundamental freedoms recognised by national and international law.

Prosecutors, as essential agents of the administration of justice, shall at all times maintain the honour and dignity of their profession.

Prosecutors shall, in accordance with the law, perform their duties fairly, consistently and expeditiously, and respect and protect human dignity and uphold human rights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system.

In the performance of their duties, prosecutors shall:

(a) Carry out their functions impartially and avoid all political, social, religious, racial, cultural, sexual or any other kind of discrimination;

(b) Protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim, and pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect;

(c) Keep matters in their possession confidential, unless the performance of duty or the needs of justice require otherwise;

(d) Consider the views and concerns of victims when their personal interests are affected and ensure that victims are informed of their rights in accordance with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.

Prosecutors shall give due attention to the prosecution of crimes committed by public officials, particularly corruption, abuse of power, grave violations of human rights and other crimes recognised by international law and, where authorised by law or consistent with local practice, the investigation of such offences.

In order to ensure the fairness and effectiveness of prosecution, Prosecutors shall strive to co-operate with the police, the courts, the legal profession, public defenders and other government agencies or institutions.

Let me now refer to the various authorities cited by the Bar one by one.

In Prabhu Dayal Vs. State, , a Division Bench of the Delhi High Court has held thus:-

The prosecutor has to be fair in the presentation of the prosecution case. He must not suppress or keep back from the Court evidence relevant to the determination of the guilt or innocence of the accused. He must present a complete picture and not one sided picture. He must not be partial to the prosecution or to the accused. He has to be fair to both sides in the presentation of the case.

In Raj Kishore Rabidas Vs. The State, , the Calcutta Division Bench would observe as follows:-

A Public Prosecutor for the State is not such a mouthpiece for his client the State, to say what it wants or its tool to do what the State directs. He owes allegiance to higher cause. He must not consciously misstate the facts, nor knowingly conceal the truth. Despite his undoubted duty to his client, the State, he must sometimes, disregard his client''s most specific instructions if they conflicted with his duty in the Court to be fair, independent and unbiassed in his views. As an advocate for the State, he may be ranked as a Minister of Justice equally with the Judge.

In The State of Bihar Vs. Ram Naresh Pandey, , the Apex Court has held as under:

In this context it is right to remember that the Public Prosecutor (though an Executive Officer as stated by the Privy Council) in, AIR 1938 266 (Privy Council) , is, in a larger sense, also an officer of the Court and that he is bound to assist the Court with his fairly- considered view and the Court is entitled to have the benefit of the fair exercise of his function. It has also to be appreciated that in this country the scheme of the administration of criminal justice is that the primary responsibility of prosecuting serious offences (which are classified as cognizable offences) is on the Executive Authorities.

In Balwant Singh and Others Vs. State of Bihar, , it has been observed as follows:

The statutory responsibility for deciding upon withdrawal squarely vests on the public prosecutor. It is non-negotiable and cannot be bartered away in favour of those who may be above him on the administrative side. The Code of Criminal Procedure is the only master of the public Prosecutor and he has to guide himself with reference to Code of Criminal Procedure only. So guided, the consideration which must weigh with him is, whether the broader cause of public justice will be advanced or retarded by the withdrawal or continuance of the prosecution.

In Mohambaram v. Jayavelu (A.I.R. 1970 Mad 63), a Division Bench of this Court would hold thus:-

Not merely is the office of Public Prosecutor a public office, but, in my view, it is a public office of considerable significance, for the integrity and efficiency of the administration of criminal justice. Any one appointed to this office must, in the interests of the public, have a high degree of efficiency, and knowledge of the law of Crimes and the Criminal Procedure; he must have character and integrity, that are irreproachable and above suspicion; he must have a sense of his duty to the public and to the Court, as overriding considerations. As can be immediately realised, if these requisites are lacking, the incumbent to such an office can gravely injure the administration of criminal justice.

In Marappa Gounder v. Venkatachalam (1983 L.W. Crl. 1), Ratnavel Pandian, J. (as he then was) observed as follows:

Indubitably the office of the Public Prosecutor involves the duties of public nature and is of vital interest to the public and therefore, the Public Prosecutor, who is rightly regarded as a Minister of Justice, should unreservedly dedicate himself to the task assigned to him and discharge the same impartially, fairly and fearlessly, with a full sense of responsibility and with so much of efficiency and thoroughness, which are the essential requisite qualifications that one should possess to hold this high office....

To the above observation, it may be added that the Public Prosecutor is not the protagonist of any party though in theory he stands for the State in whose name all prosecutions are conducted.... Hence, a person who is appointed to this highly responsible post should always uphold the dignity of this high office with a full sense of responsibility and see that its value is in no circumstance devalued.

In the light of the above decisions, the Public Prosecutor cannot say that he is not answerable to the Court, but answerable only to his appointing authority. He is an officer of the Court, who is to assist the Court in such a way for the Court to arrive at a just conclusion.

The Public Prosecutor plays a crucial role in the administration of justice. As an essential agent of the administration of justice, he shall at all times maintain the honour and dignity of his status by being true to the Court. He has to be fair in the presentation of facts. He shall never suppress or keep back from the Court any material relevant to the determination of the issue by the Court. A Public Prosecutor for the State is not a mouthpiece for the Police to say what it wants or its tool to do what the Police directs. He owes allegiance to the higher cause. Despite his undoubted duty to this client, the State, he should sometimes, disregard his client''s instructions, if they conflict with his duty in the Court to be fair and independent. He is not only an advocate for the State, but he shall be ranked as a Minister of Justice to be placed equal to the Judge. Basically, he is an officer of the Court and necessarily he is bound to assist the Court with his fairly-considered view. The Court is entitled to have the benefit of fair exercise of his function. He is not the servant of anybody else. His appointing authority cannot be his Master. The Code of Criminal Procedure is his only Master and he has to guide himself with reference to the Code of Criminal Procedure only. He must have a sense of his duty to the public and to the Court, as overriding considerations. The Public Prosecutor is not a protagonist of any party. He should always uphold the dignity of his high office with a foil sense of responsibility.

In this case, the City Public Prosecutor knew that the earlier application was dismissed by the very same Court, namely, the Principal Sessions Court, on his objection on 18.6.1997. The learned Principal Sessions Judge had given elaborate reasonings in his order for the dismissal of the said application. It was also known to the City Public Prosecutor, when the accused again moved the Sessions Court, that the bail application moved meanwhile before the High Court was dismissed. This had also been mentioned in the petition for bail by the counsel for the Petitioner. Therefore, having known about the order of the High Court dismissing the bail application, and having opposed the earlier bail application before the Principal Sessions Judge, who, in turn, dismissed with valid reasons, the learned City Public Prosecutor ought to have opposed the instant application or else he could give out reasons to the Principal Sessions Judge by showing change of circumstances to say ''no objection'', after referring to earlier orders.

No doubt, it is true that in the instant application, as per the affidavit filed by the investigating officer, it has come to light that the investigating officer himself requested the City Public Prosecutor to say ''no objection'' for the release of the accused, so that he could take the accused to Bangalore, after his release, in order to apprehend the main accused in this counterfeit case. In such an event, the learned City Public Prosecutor must have brought to the notice of the Principal Sessions Court about the High Court''s order and the earlier order passed by the Principal Sessions Judge and shown the other special circumstances for the Principal Sessions Judge to take a different view in the matter. Obviously, it was not done in this case.

If the investigating officer wanted the custody of the accused for investigation, he ought to have filed an application before the appropriate forum for the police custody. Having not done so, the investigating officer, that too, after the dismissal of the application for bail by the High Court, cannot request the City Public Prosecutor to say ''no objection'' for the release of the accused. Even if such a request was made by the investigating officer, the City Public Prosecutor, not being the mouthpiece of the Police, should not have said ''no objection'' for the release of the accused. The lapse of 24 days subsequent to the dismissal order by the High Court cannot be the ground for saying ''no objection'' before the Sessions Court.

Admittedly, in this case, the City Public Prosecutor has not gone through the order of the High Court for giving the ground to say ''no objection''. This would reveal that the learned City Public Prosecutor has no anxiety to find out legal ground to say ''no objection''. In this case, the learned City Public Prosecutor has not raised objection merely on the basis of the instruction given by the Police Officer, which act is not befitting the position that he holds. The learned City Public Prosecutor ought to have brought to the notice of the Court the reasoning of the dismissal of the earlier application by the same Court. He ought to have gone through the High Court''s order and then brought to the notice of the Principal Sessions Judge. More than that, he ought to have placed a valid reason before the sessions Court to grant bail, despite the rejection of bail by the Sessions Court to grant bail, despite the rejection of bail by the Sessions Judge as well as the High court previously. Therefore, the City Public Prosecutor could not contend that he has got prerogative right to say ''no objection'', despite the order of High Court dismissing the bail application, especially when the change of circumstance was not brought to the notice of the Principal Sessions Judge, as revealed in the bail order.

The learned City Public Prosecutor must give respect to the Court, in which he appears, since he has been appointed to assist the Court. He must also give same respect to the higher court to which, the Court, in which he is the Public Prosecutor, is a subordinate. He must have been very careful, when he knew about the order of the High Court dismissing the bail application, before making any representation in the said bail application. He must have asked the investigating officer to get the copy of the order, read it and then decide about his representation to be made before the Sessions Court. Saying ''no objection'' even without looking into the High Court''s order would definitely indicate the subservient attitude of the City Public Prosecutor to obey the words of the investigating officer, which is most unfortunate.

As held by this Court, the City Public Prosecutor, though appointed by the Government or the Commissioner of Police, is not the servant under him nor he is a protagonist of any party. As stated above for the Public Prosecutor, the master is only the Code of Criminal Procedure and not any Executive, under whose orders he was appointed. The relationship between the appointing authority and the Public Prosecutor is not the Master and Servant relationship. The Public Prosecutor is a lawyer for the State and the appointing authority being executive is a client of the Public Prosecutor. Therefore, the Public Prosecutor has to be fair, truthful, unbiased and faithful to the Court to whom he is rendering effective assistance.

In view of the above discussion, I would rather feel that the City Public Prosecutor has not conducted properly in consonance with the guidelines given by the various authorities. However, for the above misconduct, I do not want him to be punished. I only want that the City Public Prosecutor should reform himself in future and shall conduct himself suitably to the post and position he holds in the interest of Institution.

Now, the next question that arises for consideration is, how the learned Principal Sessions Judge shall deal with an application for bail, when the earlier application was dismissed by the said court as well as the High Court, even when the City Public Prosecutor has said ''no objection''.

Before referring about the way in which the Principal Sessions Judge has dealt with this matter, I would refer some of the authorities quoted by various Bar Associations in regard to the duty of the Sessions Judge in the similar situations.

In Shamsher Singh v. State of Punjab (1987 Crl.L.J.1238, Punjab & Haryana High Court), M.M. Punchhi,J. (as he then was), deprecating the conduct of the Sessions Judge to have granted bail, when the bail application was pending before the High Court, would observe as follows:

What is objectionable is that when he had moved this Court, the Court of Session should have refrained its hands from interfering in the matter when this Court was in seizing of it. However, the escape door in the instant case is that both the petitions for bail here as well as there were filed on 19-6-1986 and the petition there was perhaps filed keeping the Court of Session in the dark about the presentation of the petition here. It would be advisable that the Courts of Session should invariably satisfy itself by obtaining a note of the counsel presenting the petition that no such bail application has been moved in the High Court by or on behalf of the Petitioner, for one has to be alive to the situation that both the Court of Session as also this Court have concurrent powers in the matter of grant of bail.

In Nanha v. State of U.P. (1993 Crl.L.J. 938), a Division Bench of the Allahabad High Court would hold thus:

In the light of the discussion made in the preceding paragraphs, the view expressed by K.K. Chaubey, J. does not hold ground. Judicial consistency is a sound principle and it cannot be thrown to the winds by the individual view of judges. After all it is settled law that judicial discretion cannot be arbitrarily exercised. Moreover high aspirations of the public from the Courts will sink to depths or despair if contrary decisions are given on identical facts. All judicial and quasi-judicial authorities have not only to serve the public but also to create confidence in the minds of the public. Hence for the sake of uniformity and nondiscrimination it is essential that uniform orders should be passed even in bail matters in case of persons who stand on the same footing, if the contrary course is adopted the public will loose confidence in the administration of justice.

In Shahzad Hasan Khan Vs. Ishtiaq Hasan Khan and Another, , the Apex Court has held as under:-

Normally this Court does not interfere with bail matters and the orders of the High Court are generally accepted to be final relating to grant or rejection of bail. In this case, however, there are some disturbing features which have persuaded us to interfere with the order of the High Court. The matrix of facts detailed above would show that three successive bail applications made on behalf of Respondent-1 had been rejected and disposed of finally by Justice Kamleshwar Nath. in that view it would have been appropriate and desirable and also in keeping with the prevailing practice in the High Court that the bail application which was filed in June 1986 should have been placed before Justice Kamleshwar Nath for disposal. In fact on June 3, 1986, Justice D.S. Bajpai being conscious of this practice and judicial discipline himself passed order directing the bail application to be placed before Justice Kamleshwar Nath but subsequently on June 7, 1986 he recalled his order. We are of the opinion that Justice D.S. Bajpai should not have recalled his order dated June 3, 1986 keeping in view the judicial discipline and the prevailing practice in the High Court. Justice D.S. Bajbai was persuaded to the view that Justice Kamleshwar Nath had passed orders on March 18, 1986, releasing the bail application, the matter was therefore not tied up to him. However, the learned Judge failed to notice that when the bail application was listed before Justice Kamleshwar Nath on March 24, 1986 Respondent-1, for reasons known to him only, withdrew his application, as a result of which Justice Kamleshwar Nath dismissed the same as withdrawn. This fact was eloquent enough to indicate that Respondent 1 was keen that the bail application should not be placed before Justice Kamleshwar Nath. Long standing convention and judicial discipline required that Respondent''s bail application should have been placed before Justice Kamleshwar Nath who had passed earlier orders, who was available as Vacation Judge. The convention that subsequent bail application should be placed before the same Judge who may have passed earlier orders has its roots in principle. It prevents abuse of process of court inasmuch as an impression is not created that a litigant is shunning or selecting a Court depending on whether the Court is to his liking or not, and is encouraged to file successive applications without any new factor having cropped up. If successive bail applications on the same subject are permitted to be disposed of by different Judges there would be conflicting orders and a litigant would be pestering every Judge till he gets an order to his liking resulting in the credibility of the Court and the confidence of the other side being put in issue and there would be wastage of Court''s time. Judicial discipline requires that such matters must be placed before the same Judge, if he is available for orders. Since Justice Kamleshwar Nath was sitting in Court on June 23, 1986 the Respondent''s bail application should have been placed before him for orders. Justice D.S. Bajpai should have respected his own order dated June 3, 1986 and that order ought not to have been recalled, without the confidence of the parties in the judicial process being rudely shaken.

In State of Uttar Pradesh Vs. Jairam and Others, , the Supreme Court has held thus:-

If an order of bail is made by the Court without a full trial of the issues involved merely on prima facie opinion formed by the High Court, the said order would be open to the challenge that it is the result of improper exercise of jurisdiction. It is essential to bear in mind the distinction between the existence of jurisdiction and its proper exercise. Improper exercise of jurisdiction in such matters must necessarily be avoided by the Courts in dealing with applications of this character. The learned single Judge, with respect, has failed to appreciate the weight of these observations while passing the order of interim bail. A Division Bench had heard the petitions for two days but did not think it fit or proper to grant interim relief to the detenus. Another Division Bench was going to rehear the petitions after ten days. It is not proper that, in between, the learned single Judge should have taken upon himself the task of examining the merits of the matter in order to find whether there was a prima facie case for releasing the detenus on bail. (emphasis supplied)

In Padam Chand Jain Vs. State of Rajasthan and Another, , Jaipur Bench would observe as follows:-

The question is as to whether if on certain material without any change of circumstances, and it may be stated that filing of charge-sheet cannot be considered to be a change of circumstance, this Court had disallowed bail, whether the propriety demands and whether it was proper for the learned Sessions Judge to allow the bail to the accused? It may be stated that the practice of this Court is that if an application u/s 438 or 439, Code of Criminal Procedure is dealt with by a Judge of this Court and the second bail application of that accused is filed, then the said bail application is to be placed before the same Judge who has already dismissed his bail application. I have no doubt in my mind that on the same material, if this Court has already dismissed an application for bail filed by an accused, the learned Sessions Judge should not allow that bail application I am therefore of the opinion that in the fact-situation of the present case where the earlier bail application had been dismissed by this Court, the judicial propriety demanded that the learned Sessions Judge should not have allowed the bail to the accused-non-petitioner.

In the present case Mr. R.K. Chachan has not acted fairly and judiciously in allowing bail to the accused to whom this Court had earlier declined bail. His conduct needs examination on administrative side. A copy of this order may be sent to Hon''ble Chief Justice for taking such action as he may deem fit.

In State of Maharashtra Vs. Anand Chintaman Dighe, , the Full Bench of the Apex Court has held thus:-

It is no doubt correct that this Court in its order dated January 16, 1990 (Reported in State of Maharashtra Vs. Anand Chintaman Dighe, observed that the cancellation of bail was without prejudice to the rights of Dighe to move the Designated Court for bail at any subsequent stage, but that was only in the event of any further evidence being recorded by the Court or any fresh material being made available during the investigation or before the Court. This Court also directed that it was necessary for the Designated Court to consider further material collected by the investigating agency by recording statements of witnesses. The Designated Court did not record any evidence and there was no fresh material available before the Court. The learned Judge of Designated Court by putting his own gloss over the same material has again granted bail to the Respondent. We do not appreciate the manner in which the learned Judge has dealt with the matter. The police investigation prima facie shows that mafia-type terror and fear psychosis was created which led to the cold-blooded murder of Shridhar Khopkar. The learned Judge acted illegally in appreciating the statements of witnesses and material collected by the investigating officer at the investigation stage. He should have permitted the evidence to be recorded and thereafter dealt with the same in accordance with law. (underlining is mine)

In Bimla Devi (Smt) Vs. State of Bihar and Others, the Supreme Court would observe thus:-

The disturbing feature of the case is that though two successive applications of the accused for grant of bail were rejected by the High Court yet the learned Magistrate granted provisional bail. The course adopted by the learned Magistrate is not only contrary to settled principles of judicial discipline and propriety but also contrary to the statutory provisions. The manner in which the learned Magistrate dealt with the case can give rise to the apprehensions which were expressed by the complainant in her complaint, which was treated by this Court as a writ petition and is being dealt with as such. In the course that we are adopting, we would not like to comment upon the manner in which the learned Magistrate dealt with the case any more at this stage. We, in the facts and circumstances stated above, direct that a copy of this order be sent to the Chef Justice of the Patna High Court for taking such action on the administrative side as may be deemed fit by him. (emphasis supplied)

In Virendra Singh v. Avdhesh Kumar and Ors. (1984 (1) Crimes 96), the Allahabad High Court would observe as follows:-

The proposition that where bail application of an accused has been rejected by High Court, the Sessions Court cannot allow a subsequent bail application of the same accused, is, in my opinion, too widely worded and cannot he accepted without qualification. Accepting the proposition would amount to placing a total bar on the power of the Sessions Court which does not appear to be expedient and desirable. Such a bar is likely to work considerable hardship in many a deserving cases where new substantial grounds have come into existence since the rejection of bail application by High Court. The correct position appears to be that even after rejection of a bail application by High Court, the Court of Session may entertain and consider an application for bail of the, same accused provided new substantial ground;? for bail have arisen since the last order of rejection of bail and a reasonably long interval, has also elapsed. While dealing with such a bail application the Sessions Court should be circumspect and bear in mind the question of propriety and judicial decorum. If it feels that passing an order of bail in the face of an earlier order of rejection of bail by the High Court, would appear to over step the limits of propriety and judicial decorum, it should direct the accused to approach the High Court for bail. This kind of exercise of discretion will also be conducive to clean administration of justice. The grant of bail to the accused on 17.3.83 was not justified.

The order was also against propriety and judicial decorum inasmuch as it was made after bail had been rejected on merit by this Court a few months earlier. The proper course for the Additional Sessions Judge in the instant case would have been to direct the accused to approach this Court. (underlining is mine)

In H.C. Gaur Vs. Rakesh Vij and Another, , the Delhi High Court would hold as under:-

Reverting to the facts of the present case, the impropriety on the part of the learned trial Judge in granting bail by impugned order dated 23rd March 1989 is glaringly manifest on record for the reason that no new circumstance had come into operation so as to justify the grant of bail, after the High Court had dismissed the petition for bail on merits by order dated 15th July 1988 and before that the same learned trial Judge had dismissed the petition for bail considering the facts of the case as reproduced by him in detail in his order dated 3rd May 1988. Thereafter, by means of a very cryptic order, he thought it fit to grant bail in the midst of trial, for the reasons that the accused had been in custody for 26 months. He has rightly not discussed merits of the case because there was no change in facts, and appreciation of evidence could not be undertaken in the midst of trial (emphasis supplied)

In State of Maharashtra Vs. Captain Buddhikota Subha Rao, , the Apex Court has observed as follows:-

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 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 the light of the decisions referred to above, let me, now, deal with the conduct of the Principal Sessions Judge in granting bail in a serious case, in which bail was refused earlier by the said Court as well as this Court.

The very same accused filed an application for bail and the same was dismissed by the Principal Sessions Judge on 18.6.1997 on considering the objection by the Prosecutor, the gravity of the offence alleged and the involvement of the accused in the said case. This was passed by the predecessor of the present Principal Sessions Judge. Subsequently, as referred earlier, the accused filed a petition before the High Court and the same also was dismissed on elaborate consideration of the gravity of the offence.

However, the accused Jeevarathinam, for the best reasons known to him, instead of filing an application before this Court by showing some change of circumstances, has resorted to file an application before the Principal Sessions Judge, without mentioning about the change of circumstances, but of course, making reference to the dismissal of the previous applications by the Sessions Court as well as the High Court giving Crl.O.P. numbers and the details of the case. Strangely, of course as instructed by the Inspector of Police, the learned City Public Prosecutor said ''no objection.''

As I indicated above, the City Public Prosecutor cannot act as a mouthpiece for the Police and so he is not expected to say ''no objection'', merely because he was asked to do so by the Police. As a Court Officer, he has to consider the pros and cons, the facts and circumstances of the case and the earlier orders of the Sessions Court and the High Court rejecting the bail applications and then to make the appropriate representation before the Court by placing all the materials before the said Court by way of assisting the Court and then make the Court to come to the just conclusion. This was not done. About this aspect this Court has already dealt with.

In the same way, the Court also is not expected to act upon the representation by the Public Prosecutor. Even when the Public Prosecutor in derogation of the discharge of his duty said ''no objection'', the Court cannot shut its eyes and obey for the "direction" in the form of ''no objection'' by the City Public Prosecutor. In other words, the Court should not surrender its exercise of judicial discretion at the feet of the Prosecutor. In this case, both have surrendered their discretions to the investigation agency.

As I stated earlier, even in the bail petition, it was mentioned about the dismissal order of the High Court. Such being the case, even in the absence of the submission by the counsel as well as the City Public Prosecutor relating to the High Court''s order, the Sessions Court ought to have asked the Prosecutor or the counsel for the Petitioner to produce the copy of the order, in order to find out whether there is any substantial and material change of circumstances, subsequent to the rejection of bail by the High Court, necessitating the grant of bail. When the Court of Sessions knew about the earlier order by the High Court, it should have refrained its hand from directly interfering in the order passed by the High Court and it is advisable to the Court of Session to direct the party to go to the High Court again. But, somehow this was not done.

No doubt it is true that Section 439, Code of Criminal Procedure confers concurrent powers in the matter of grant of bail to the Court of Session as well as this Court. But, once High Court took up the matter and gave a finding in the application, the Sessions Court either to have refrained from dealing with the bail application by directing the party to approach the High Court or to find out any substantial change of circumstances, after going through the High Court''s order. Admittedly, this was not done.

Judicial consistency is a sound principle. It cannot be thrown to the winds by the individual view of judges. The judicial authorities have not only to serve the public but also to create confidence in the minds of the public. Therefore, the judicial discretion cannot be arbitrarily exercised.

The norms laid down by the Supreme Court for granting bail in Gurcharan Singh''s case (AIR 1978 SC 179), viz:

(i) the nature and gravity of the circumstances in which offence is committed;

(ii) the position and the status of the accused with reference to the victim and witnesses;

(iii) the likelihood of;

(a)the accused fleeing from justice;

(b) of repeating the offence

(c) of jeopardising his own life being faced with grim prospect of possible conviction in the case;

(d) of tampering the witnesses.

(iv) the history of the case as well as of its investigation; and

(v) other relevant grounds

have to be considered at the time of consideration of bail even at a subsequent stage of second or third application. But, as I indicated earlier, these things have not been taken into consideration by the Principal Sessions Judge, while considering the said application. The application was allowed simply on the basis of the representation made by the Public Prosecutor saying ''no objection''. So, this conduct is in directly contrary to the norms propounded by the Apex Court.

As held by the Apex Court in the various decisions referred to above, even among the Judges of this High Court, when the second application comes before some other Judge, the judicial propriety demands the subsequent application must be placed before the Judge, who already dealt with the matter. The Supreme Court says in its words "the judicial discipline" requires such matters must be placed before the same Judge.

The concurrent jurisdiction conferred to the Sessions as well as the High Court would not help the Sessions Court to entertain lightly the bail application after it was dismissed by the High Court. It should be borne in mind the distinction between the existence of jurisdiction and its proper exercise. Entertaining of such bail application, in the absence of substantial change of circumstance, would amount to improper exercise of jurisdiction, which must necessarily be avoided.

On the same material, if this Court has already dismissed an application for bail, the learned Sessions Judge should not have allowed that bail application without considering the earlier order, as it would amount to interference in the order of this Court. The judicial discipline demands that the bail order should not have been passed, virtually reversing all the earlier orders passed by his predecessor and this Court, in the absence of any substantial change in the fact-situation.

Even in the remarks sent by the Principal Sessions Judge, there is no reason as to why the order of the High Court was overlooked. Though only reason given in the bail order for granting bail is that there is no objection on the side of prosecution, there is an attempt in giving explanation in the remarks that it was represented by the Prosecutor that the release of the accused on bail would only enable the investigating agency to secure the main accused. Besides the question whether it could be a ground for bail, in the light of the earlier dismissal by the High Court, even such ground is not mentioned in the order.

Another reason given in the explanation is that the accused was aged about 65 years. Admittedly, the previous application was dismissed by this Court only 24 days back. So, age of the accused must be the same even on the date of dismissal by this Court. Then, how could it be taken as a change of circumstance? Therefore, the new explanation that is being given in the remarks also would not be, in my view, a valid ground for granting bail. Hence, I am not able to appreciate the manner in which the learned Principal Sessions Judge has dealt with the matter.

So, the act of passing an order of bail in the face of an earlier order of rejection of bail by this Court, in the absence of new substantial ground would tantamount to over step the limits of propriety and judicial decorum. In such circumstance, the learned Principal Sessions Judge should have directed the accused to approach the High Court for bail. This sort of exercise of discretion will alone be conducive to the clean administration of justice.

The Supreme Court, while referring about the change of circumstances, would observe as follows:

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.

In this case also, except the lapse of 24 days, there is no substantial change warranting a fresh view to be taken, that too, by the Sessions Court.

In State v. Adi Rajaram (1996 2 L.W.(Crl.) 482), C. Shivappa, J., while dealing with a similar situation, wherein ignoring the High Court''s earlier order of dismissal, the Principal Sessions Judge granted bail, with great anguish would observe as follows:

In the instant case, he has not even adverted to the earlier order passed by this Court on 17.10.1995 rejecting the prayer of the Respondent herein for an anticipatory bail. of course, Judges differ in their outlooks, their attitudes and this is bound to be so, when experiences are different, but where the ratio on a principle of law is settled by the Apex Court or this Court irrespective of one''s personal view the settled principles have to be followed in order to maintain judicial discipline. With the Principal Sessions Judge, Madras, the dicisional process has no settled standard and the cases instanced above, including the impugned order, show they are "a bit out of the ordinary" in the words of Shetty,J. If the conduct is as likely substantially to reduce the confidence in the public as a whole in a Judge''s ability to reach correct decision in the cases he tries, constitutes judicial misbehavior. In the words of Lord Denning "Justice is deep-rooted in confidence". Learned Judge dismissed the application on 24.11.1995 within five weeks without any substantial change in circumstances, in spite of the Apex Court cautioning not to review the earlier decision made unless what is required is not cosmetic change, but a substantial change in circumstances. He did not even bother to refer to the settled principles. Not that he should agree with a precedent if not on the point, but he should have indicated the reason for disagreement. This attitude of the learned Judge requires deprecation and I size up his judicial conduct as one of judicial misbehavior.

Here also, even without referring to the High Court''s order, the learned Principal Sessions Judge passed the order of bail in four lines, merely by saying the City Public Prosecutor has no serious objection. Thus, the judicial discipline has been sacrificed by the Principal Sessions Judge at the altar of judicial discretion. Judicial restraint demands that I say nothing more about the conduct of the Principal Sessions Judge.

In this context, I may refer to the some explanation and request in the remarks dated 13.8.1997 sent by the Principal Sessions Judge as under:

During my past 10 years of service as a judicial officer, I have been exercising due care and caution in passing orders in protecting the interest of justice and I have all along been most obedient to the High Court of Judicature at Madras. If the Hon''ble High Court comes to the conclusion that the act of mine in passing the above order, is not proper, I very much regret for the same. I assure the Hon''ble High Court that I will be more careful in future in dealing with such matters and I may be apologized this time.

In view of the above request by Thiru M. Chockalingam, the Principal Sessions Judge, in the remarks and heart-felt regret expressed by him, this Court accepts his apology also.

In the backdrop of the analysis of the fact-situation and detailed discussion made above, I am of the considered opinion that the guidelines given below to be followed by the subordinate Judiciary in the situation as referred above would be conducive to the clean administration of justice:

(1) It is the bounden duty of the Court of Session to invariably satisfy itself by obtaining a note of the counsel presenting the petition that either no such bail application has been previously moved before the said Court or in the High Court or if any such application made and dismissed by the said Court or by the High Court, a reference to be made by the Counsel in the petition about the change of circumstances. The change of circumstances should not merely be a cosmetic change, which is of little consequence, but it must be a material and substantial one, which has a direct impact on the earlier decision either by the said Court or by the High Court.

(2)If the Sessions Court feels that passing an order of bail in the face of an earlier order of rejection of bail by the High Court, would appear to overstep the limits of propriety and judicial decorum, it should direct the accused to approach the High Court for bail.

(3) The Court of Session, after verification found that the very same Court has been moved previously for bail, shall consider the reasonings contained in the previous order and then decide the bail petition. Even in the grant of bail in those situation unless there is a material and substantial change of circumstances, it would not be proper for the Sessions Court to pass an order of granting bail by indirectly reversing the earlier order of the same Judge or predecessor to him, because the judicial authorities are not only to serve the public but also to create confidence in the minds of the public that there is a judicial consistency.

(4) The Sessions Court, apart from considering the earlier order, should follow the guidelines in Gurcharan Singh''s case (supra), especially in grave crimes.

(5) The Court of Session and the High Court have been given special and concurrent powers under the Code of Criminal Procedure to deal with the bail application u/s 439 The restriction put in Section 437 would not put embargo on the jurisdiction of the Sessions Court and the High Court to exercise discretion in grant of bail, though the object of the restriction put in the section has to be taken note of by this Court. Therefore, the judicial discretion must be exercised in such a way not to violate the basic principles relating to bail and overruling the earlier decision given by the High Court, though the powers are concurrent.

(6) Such a special power given to the Sessions Court should not be exercised by surrendering its exercise of judicial discretion at the feet of Public Prosecutor. Even when the Public Prosecutor says ''no objection'', the Sessions Court cannot shut its eyes and "obey for the direction" in the form of no objection by the Public Prosecutor. The Sessions Court should independently, on consideration of various aspects, such as materials collected in the investigation, the earlier orders passed by the Sessions Court and the High Court, if any, and other guidelines given by this Court and the Supreme Court, decide the bail application.

With the above observations, the contempt proceedings are closed.

Before parting with this order, this Court places on record the valuable assistance rendered by Mr. Margabandhu, the Chairman of Bar Council of Tamil Nadu, Mr. Jayaraman, the President of Advocates'' Association and Bar Federation, Mr. Ravindran, the President of Bar Association, Ms. Badar sayed, the President of Women Lawyers'' Association, Mr. Shanmugasundram, the Public prosecutor, who appeared for himself and for the learned Advocate General and Mr. Kannan, the Vice-president of Law Association, City Civil Court and appreciates their solemnity with which they approached the issue involved, being fully conscious of their duty to preserve the dignity of this Court.

The Registry is directed to send a copy of this order to the learned Principal Sessions Judge concerned with a covering letter inviting his special attention to this order. It is further directed to send copies of this order to all the subordinate Judiciary, so that they may follow the guidelines referred above in the future and also furnish a copy to the Public Prosecutor, High Court, in order to enable him to circulate the copies to the other Public Prosecutors in the State including Union Territory of Pondicherry.