Legal Fiction: Conversations between Lord Mangolier and Lord Yayata on Grant of Bail and Judicial Discpline

Brief Background

Lord Mangolier comes from a Warrior Clan and his ancestors were fighters and warriors. His ancestors were kings of the Princely State of Kaneta and people still worship him in that State. Though coming from a warrior family, Lord Mangolier immersed himself into law right from his childhood. Right since when has 8 years old, he started to sit with his grand father who was a distinguished jurist of his times. Having a keen interest in the field of law and interpretation, Lord Mangolier often amuses himself with the riddles of science and the latest scientific developments.

Lord Yayata comes from the Priestly Clan of Dakshila and belongs to a family of priests and landlords. He undertook his primary and secondary education from the prestigious Gale School of the Western Provinces.  Despite being blue blooded, Lord Yayata is known for his humility and helping nature. Legend has it that he often roams at night and searches for the poor to feed them and provide them with some money since he does not intend anyone to know about it. Lord Yayata's basic interests include flying personal aircrafts, travelling to the highest peaks of the Earth, Golfing etc. For most part of his life, he practiced law as a Lawyer and is considered to be an authority on variety of subjects.

The Story

Both Lord Mangolier and Lord Yayata studied law from the world famous Law School situated in the State of Gumnamgarh. Right since the college days, they had a habit of discussing complex legal problems. Today both have becomes Lords and still they enjoy the bonhomie and the candid legal discussion. On a fine afternoon of Sunday, Lord Mangolier sitting in his chamber was perplexed by a legal problem that he was not able to come to terms to. He needed someone to offer him fresh perspective. Suddenly, someone knocked on the door, Lord Mangolier asked who is it? It was Lord Yayata who barged in on him and said that why are you sitting inside your chamber on such a fine Sunday?

Lord Mangolier: I have a case that I am not able to solve.

Lord Yayata:  Tell me.

 

Lord Mangolier: If a bail is rejected by any High Court in India, can the trial court grant the same on the ground that other co-accused persons have been granted bail by the High Court?

 

Lord Yayata: Hmm

 

Lord Mangolier: Honestly speaking, I think not. But just needed some case law to drive home the point. I apprehend that some foul play may also be involved.

 

Lord Yayata: you may look for ... I am forgetting the term...

 

Lord Mangolier: Doctrine of Judicial Discipline?

 

Lord Mangolier: In Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav [AIR 2005 SC 921], it was held that: -

“19........The principles of res judicata and such analogous principles although are not applicable in a criminal proceeding, but the courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our country. The findings of a higher court or a coordinate bench must receive serious consideration at the hands of the court entertaining a bail application at a later stage when the same had been rejected earlier. In such an event, the courts must give due weight to the grounds which weighed with the former or higher court in rejecting the bail application. Ordinarily, the issues which had been canvassed earlier would not be permitted to be re- agitated on the same grounds, as the same it would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting.

The decisions given by a superior forum, undoubtedly, is binding on the subordinate fora on the same issue even in bail matters unless of course, there is a material change in the fact situation calling for a different view being taken. Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Therefore, we are not in agreement with the argument of learned counsel for the accused that in view the guaranty conferred on a person under Article 21 of the Constitution of India, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by courts earlier including the Apex Court of the country.”

Lord Yayata: It is not directly on point but it may help since this was for same High Court benches and not on different levels. You could look into Article 227 of the Constitution of India and Section 483 of the Code of Criminal Procedure.

“483. Duty of High Court to exercise continuous superintendence over Courts of Judicial Magistrates. Every High Court shall so exercise its superintendence over the Courts of Judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrates.”

 

Lord Mangolier: Oh! This looks good. I also found another ruling, Bimla Devi v. State of Bihar [(1994) 2 SCC 8], stating that: -

“2. In view of the fact that the Judicial Magistrate at a later stage has himself cancelled the bail, it is not necessary for us to pass any order with regard to the petitioner's prayer for cancellation of bail but 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. (See in this connection Shahzad Hasan Khan case'.) 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 Chief Justice of the Patna High Court for taking such action on, the administrative side as may be deemed fit by him.”

 

Lord Yayata: Hmm. Could you also press contempt charges on the judge itself?

 

Lord Mangolier: To press contempt, some fraud or misconduct will have to be exhibited on part of the judge. Let’s see.

 

Lord Yayata: I think you are right. But on a similar note, is cancellation of bail different from challenging the order of granting bail. What do you think?

 

Lord Mangolier: I guess it is the same thing i.e. the exercise of powers under Section 439 (2) of Cr.P.C.

 

Lord Yayata: Hmm. You could also look into Section 446A of the Code of Criminal Procedure which states that: -

“Cancellation of bond and bail-bond. Without prejudice to the provisions of section 446, where a bond under this Code is for appearance of a person in a case and it is forfeited for breach of a condition-

(a) the bond executed by such person as well as the bond, if any, executed by one or more of his sureties in that case shall stand cancelled; and

(b) thereafter no such person shall be released only on his own bond in that case, if the Police Officer or the Court, as the case may be, for appearance before whom the bond was executed, is satisfied that there was no sufficient cause for the failure of the person bound by the bond to comply with its condition: Provided that subject to any other provision of this Code he may be released in that case upon the execution of a fresh personal bond for such sum of money and bond by one or more of such sureties as the Police Officer or the Court, as the case may be, thinks sufficient.”

 

Lord Mangolier: Oh! That is a great point. It seems that this is specifically when the bail conditions are violated.

 

Lord Yayata: Yes. That one only allows bail to be cancelled.

 

Lord Mangolier: Hmm. Interesting! But then, in such a case, what is the status of the Order granting the Bail?

 

Lord Yayata: This chapter of the Code of Criminal Procedure is very intresting. Reading a section standalone may confuse sometimes. It takes a lot of time to master it.

 

Lord Mangolier: Then what would be the remedy for the accused against an Order passed under Section 446A, just wondering?

 

Lord Yayata: I think the accused will have to move a fresh Bail Application.

 

Lord Mangolier: Hmm. It means that the earlier Order granting Bail will become infructuous. Also, Section 439 (2) seems to have a larger mandate than Section 446A and seems to include the mandate of Section 446A as well or are they distinctively separate in their mandates?

 

Lord Yayata: I think they are separate in as much as the grounds on which they are granted.

 

Lord Mangolier: But if bail bond conditions are violated, apart from Section 446A, Section 439 (2) can also be preferred by the complainant or the state though I concede that it would be more appropriate to prefer an Application conjointly under S. 439(2) read with S. 446A. Another interesting thing that the headnote of S. 439. Section 439 (2) states that:

“S. 439 (2) - Special powers of High Court or Court of Session regarding bail – A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.”

 

Lord Yayata: Hmm. It seems like S. 482 of the Code of Criminal Procedure i.e. the inherent powers of the High Court except that S. 439 (2) is a mini 482 for Bail. I am more intrigued by, whether one can challenge the order granting bail and set it aside in cases of Criminal Appeal or Revision, but let’s save that debate for another day.

 

Lord Mangolier: Haha! Yeah. This is enough for today. Thank you for all your help.