Patna High Court – Orders
Saurav Kumar @ Saurabh Kumar vs The State Of Bihar on 24 April, 2026
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Mohit Kumar Shah
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.657 of 2024
Arising Out of PS. Case No.-356 Year-2018 Thana- GAYA MUFASIL District- Gaya
======================================================
Saurav Kumar @ Saurabh Kumar, son of Sudhir Kumar, Resident of Village-
Surheri, P.S. Muffasil, District- Gaya.
... ... Appellant
Versus
1. The State of Bihar
2. 'X'
... ... Respondents
======================================================
Appearance :
For the Appellant : Mr. Ajay Kumar Thakur, Advocate
Md. Imteyaz Ahmad, Advocate
Mr. Ritwij Raman, Advocate
Mr. Mudit Meet, Advocate
Mr. Shivam, Advocate
Mr. Pravin Kumar, Advocate
Mr. Purushottam Kumar, Advocate
Mr. Amish Kumar, Advocate
Mr. Satish Kumar Mehta, Advocate
For the State : Mr. Binod Bihari Singh, Advocate
For the Resp No. 2 : Mr. Rounak Sinha, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
and
HONOURABLE MR. JUSTICE SANJAY KUMAR SINGH
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
(For self and on behalf of Hon'ble Mr. Justice Mohit Kumar
Shah and Hon'ble Mr. Justice Sanjay Kumar Singh)
11 24-04-2026
Heard Mr. Ajay Kumar Thakur, learned Advocate,
Mr. Amish Kumar, learned Advocate and Mr. Rounak learned
Advocate as also Mr. Binod Bihari Singh, learned Additional
Public Prosecutor for the State.
2. This Court is considering the reference made by the
Hon’ble Division Bench of this Court in Cr. Appeal (DB) No.
Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026
2/23
657 of 2024 vide order dated 03.02.2026. The necessity to make
the reference may be found in the order of the Hon’ble Division
Bench. Briefly stating, the Hon’ble Division Bench was hearing
an application seeking suspension of sentence and release on
bail of the appellant. In course of hearing, it was noticed that
prior to making the application, the appellant had moved for the
identical reliefs. The Hon’ble Predecessor Division Bench heard
the matter on the point of suspension of sentence on 18.01.2025.
The order dated 18.01.2025 is being reproduced hereunder for a
ready reference:-
“Heard Mr. Ajay Kumar Thakur, learned counsel
for the appellant and Mr. Binod Bihari Singh,
learned APP for the State appearing in Criminal
Appeal (DB) No.646 of 2024, Mr. Ajay Kumar
Thakur, learned counsel for the appellant and Mr.
Binod Bihari Singh, learned APP for the State
appearing in Criminal Appeal (DB) No.657 of
2024, Mr. Aryan Singh, learned counsel for the
appellant and Mr. Sujit Kumar Singh, learned APP
for the State appearing in Criminal Appeal (DB)
No.678 of 2024, Mr. Aryan Singh, learned counsel
for the appellant and Mr. Binod Bihari Singh,
learned APP for the State appearing in Criminal
Appeal (DB) No.683 of 2024, Mr. Birendra
Kumar, learned counsel for the appellant and Mr.
Binod Bihari Singh, learned APP for the State
appearing in Criminal Appeal (DB) No.687 of
2024, Mr. Gautam Kumar Kejriwal, learned
counsel for the appellant and Mr. Binod Bihari
Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026
3/23Singh, learned APP for the State appearing in
Criminal Appeal (DB) No.727 of 2024 and Mr.
Shailesh Kumar learned counsel for the appellant
and Mr. Abhimanyu Sharma, learned APP for the
State appearing in Criminal Appeal (DB) No.751
of 2024 and Mr. Rounak Sinha, learned counsel for
the informant appearing in all the appeals.
2. Learned counsels appearing for the respective
appellants do not want to press the prayer for
grant of bail for respective appellants for the
present.
3. However, it has been requested that as the Trial
Court has convicted the appellants for commission
of the offence punishable under section 376 (D) of
the Indian Penal Code, in view of the provisions
contained under Section 374(4) of Code of
Criminal Procedure, the appeals be heard within
stipulated time.
4. In view of the aforesaid submission, prayer for
bail and for suspension of sentence is not
entertained for the present. However, in view of
the provision contained in Section 374(4) of the
Code of Criminal Procedure, office is directed to
prepare the paper-book and thereafter list the
matter under the caption “For Hearing” in the
week commencing from 12th of May, 2025.”
3. Since the Hon’ble Division Bench noticed that
earlier identical prayer of the appellant was considered by a
Division Bench of this Court to which one of the Hon’ble
Judges (Hon’ble Mr. Justice Alok Kumar Pandey) is still
available in this Court, therefore, the Division Bench took a
Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026
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view that it becomes a tied up matter and the interlocutory
application is required to be listed before a Division Bench to
which the said Hon’ble Judge should have been a party. At this
stage, the Hon’ble Division Bench was informed that a learned
Co-ordinate Bench of this Court has vide order dated
12.12.2025 in Cr. Appeal (DB) No. 499 of 2024 passed the
following order:-
“Perused the record.
2. We are unable to comprehend why this matter
has been treated as tied up, as no order deciding
any bail application or prayer for bail has been
passed by one of us sitting in earlier Division
Bench.
3. Learned counsel appearing on behalf of the
petitioner submits that due to order dated
25.09.2024, the matter is being treated as tied up.
4. On 25.09.2024, the following order was
passed:
“Heard Mr. Rajani Ranjan Pd. Singh, learned
Advocate for the appellant, Mr. Upendra
Yadav, learned Advocate for the Informant and
Mr. Parmeshwar Mehta, learned A.P.P. for the
Respondent-State.
2. Learned Advocate for the appellant does not
press the prayer for bail and for suspension of
sentence for the present.
3. Hence, the said prayer is not entertained for
the present.
4. However, liberty is reserved to the appellant
to file separate Interlocutory Application under
Section 389(1) of the Code of Criminal
Procedure, after a period of one year.”
5. From the aforesaid order dated 25.09.2024, it
Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026
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is apparent that the prayer for bail of the
appellant was not entertained on submission of
the learned counsel for the appellant as the same
was not being pressed. However, no order was
passed either disposing of any bail application or
prayer for bail or dismissing it as not pressed.
6. In the light of aforesaid facts and
circumstances, the office is directed to list this
case before appropriate Bench after obtaining
necessary permission from Hon’ble the Acting
Chief Justice.”
4. There being a divergent view on the matter as to
where the subsequent application should be listed and heard, the
Hon’ble Division Bench thought it just and proper to refer the
matter to a larger Bench. The Division Bench has referred and
relied upon the judgment of the Hon’ble Supreme Court in the
case of Shahzad Hasan Khan vs. Ishtiaq Hasan Khan
reported in (1987) 2 SCC 684 (paragraph ‘5’) and the judgment
of the Hon’ble Full Bench of the Madhya Pradesh High Court in
the case of Santosh Bhawani Singh vs. State of M.P. (F.B.)
reported in 2000 Cri. L.J. 1834 (paragraph ‘3’).
5. In it’s order of reference, the Division Bench has
framed the following issues for reference:-
“17. The discussions hereinabove raises an issue
as to (i) whether a subsequent application/prayer
Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026
6/23for suspension of sentence and grant of bail after
withdrawal of identical application/prayer before
a Bench be placed before the same Division
Bench if the Hon’ble Judges who constituted the
earlier Bench are still available?
(ii) If one of the Hon’ble Judges has either
retired or transferred from the Court, whether
such matters be listed before a Division Bench
comprising one of the Hon’ble Judges who is
still available?”
Submissions of Mr. Ajay Kumar Thakur, Mr. Amish Kumar,
Mr. Rounak Kumar, learned Advocates and Mr. Binod
Bihari Singh, learned Additional Public Prosecutor
6. Mr. Ajay Kumar Thakur, learned counsel leading
the argument has placed before this Court Rule ’28’ under
Chapter VII of the Patna High Court Rules (as amended up-to-
date). Chapter VII deals with the ‘Procedure before Admission’.
By relying upon Rule ’28’, learned counsel submits that on a
bare reading of this Rule, it would appear that once an order has
been passed by the Hon’ble Judge of this Court on any
application, the subsequent application to the same effect or
with the same object would be required to be listed before the
same Hon’ble Judge. The only exception would be an order of
reference to another Judge or Judges and except that it is by way
of an appeal.
Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026
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7. Learned counsel has further taken this Court
through Rule ‘4A’ under Chapter XII of the Patna High Court
Rules wherein besides mandating that every petition for appeal,
application shall contain the prescribed particulars, it is
specifically stated that application for bail shall further state
whether on the same facts or otherwise a previous application
for bail had been filed in the Court on behalf of any of the
applicants for bail, and if so, the number of the case, the date of
disposal and result thereof. It is his submission that a conjoint
reading of Rule ’28’ under Chapter VII and Rule ‘4A’ under
Chapter XII of the Patna High Court Rules would go a long way
to show that in a criminal appeal where the appellant being a
convict has prayed for suspension of his sentence and release on
bail but the said prayer was either withdrawn or rejected for any
reason, a subsequent application for the identical relief shall be
listed before the same Hon’ble Bench.
8. Learned counsel submits that earlier the Hon’ble
Full Bench of Madhya Pradesh High Court has considered this
aspect of the matter in the case of Santosh Bhawani Singh
(Supra). The Hon’ble Full Bench of the Madhya Pradesh High
Court had privilege to rely upon the judgment of the Hon’ble
Supreme Court in the case of Shahzad Hasan Khan (supra)
Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026
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wherein this issue had cropped up and the Hon’ble Supreme
Court had considered the same. The Hon’ble Full Bench held
that even though posting of the subsequent bail applications
before the same Bench had never been considered as an
imperative of law, this requirement was recognized in view of
the long standing convention and judicial discipline. In the case
of Shahzad Hasan Khan (supra), the Hon’ble Supreme Court
observed that the convention that subsequent bail application
should be placed before the same Judge who may have passed
earlier orders has it’s roots in principle as it prevents abuse of
process of the court and obviates possibility of an impression
that a litigant is shunning or selecting a court depending on
whether the court is to his liking or not.
9. Mr. Thakur, learned counsel has placed before this
Court Rule ’16’ of the Madhya Pradesh High Court Rules, 2008
to submit that in consonance with what were held by the
Hon’ble Full Bench in Santosh Bhawani Singh (supra), the
Madhya Pradesh High Court substituted Rule ’16’ of the High
Court Rules vide Notification published in M.P. Gazette (Extra)
dated 30.07.2010, Page 801, w.e.f. 10.08.2010. Tied-up matter
has been defined under clause (23) of Rule ‘4’ under Chapter I
of the Madhya Pradesh High Court Rules, 2008 (as amended
Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026
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up-to-date). Rule ’16’ deals with the tied-up matters. In terms of
sub-clause (3) of clause (23) of Rule 4, a repeat application for
bail or suspension of sentence would be covered within the
meaning of the words “Tied-up Matters”. It is pointed out that
even under Rule ’15’ of the Madhya Pradesh High Court Rules
all subsequent applications under Sections 389(1), 438 and 439
of the Code of Criminal Procedure, 1973 were required to be
listed before the same Judge/ Bench who/ which had decided the
first application even if the earlier application was dismissed for
want of prosecution or dismissed as not pressed or withdrawn.
10. Mr. Thakur, learned Advocate has further placed
before this Court Rule ’14’ under Chapter V of the Allahabad
High Court Rules which provides that a case partly heard by a
Bench shall ordinarily be laid before the same Bench for
disposal. Only when there is a case in which a Bench has merely
directed notice to be issued to the opposite party or passed an ex
parte order, the same shall not be deemed to be partly heard by
such Bench. It is submitted that the Hon’ble Jharkhand High
Court has also made Rules. Rule 68(3) of the Jharkhand High
Court Rules, 2001 is at pari materia with Rule ’28’ under
Chapter VII of the Patna High Court Rules.
11. Mr. Amish Kumar, learned Advocate has endorsed
Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026
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the submissions of Mr. Ajay Kumar Thakur, learned Advocate.
In addition, he has placed before this Court a Division Bench
judgment of the Hon’ble Kerala High Court in the case of
Muhamed Salim vs. State of Kerala reported in 2024 SCC
OnLine Ker 7473. It is submitted that very recently, the
Hon’ble Kerala High Court has taken a view that if the earlier
application of the same nature was dismissed as withdrawn/ not
pressed, the Registry shall first place it before the Judge who
disposed of the earlier application who shall have the discretion
to decide whether the earlier application was considered on
merits before it was dismissed as withdrawn/ not pressed. It is
submitted that the Hon’ble Division Bench of the Kerala High
Court has in the concluding paragraph ’25’ recorded that if the
Judge who passed the orders of withdrawal/ not pressed, is of
the view that there was no consideration on merits of the earlier
application, the said Judge will be at liberty to direct the
Registry to place it before the Judge as per prevailing roster.
12. Mr. Amish Kumar, learned Advocate has
submitted that this Court has well-settled tradition of treating
such matters as tied-up matters where on an earlier occasion one
of the Hon’ble Judges or the Hon’ble Benches has passed an
order either dismissing the application on merit or allowing the
Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026
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application to be withdrawn or whether the application stands
dismissed in want of prosecution. Learned counsel has referred
the judgment in the case of Rupam Pathak vs. The State of
Bihar through C.B.I. (Cr. Appeal (DB) No. 393 of 2012)
wherein the Hon’ble Division Bench of this Court had been
pleased to reject the prayer for bail giving some reasons
whereafter Rupam Pathak made a fresh prayer for bail before
the High Court, a Division Bench of the High Court had granted
the bail. The order granting bail was taken to the Hon’ble
Supreme Court in Criminal Appeal No. 1836 of 2013 arising
out of SLP (Crl.) No. 5520 of 2013 (Sudip Kumar vs. The
State of Bihar, through CBI Bihar, Patna & Anr.). The
Hon’ble Supreme Court set aside the order granting bail and
observed that the prayer for bail made by the respondent
Rupam Pathak should have been considered by the same
Division Bench of the High Court which had earlier declined
bail to the respondent by the order dated 14.05.2012. It is, thus,
the submission of learned counsel that in view of the existing
provision under the Patna High Court Rules coupled with the
judicial pronouncements on the subject, the reference is required
to be answered in an affirmative view.
13. Mr. Rounak Sinha, learned counsel representing
Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026
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the informant in the appeal has, besides endorsing the
submissions of Mr. Ajay Kumar Thakur, placed before this
Court a Full Bench Judgment of the Jharkhand High Court in
Lurdhu Marandi and Ors. vs. The State of Jharkhand (Cr.
Appeal (DB) No. 39 of 2008 and other analogous matters)
reported in 2018 SCC OnLine Jhar 276. The Full Bench was
hearing a reference as under:-
“3. The Division Bench, making a reference, has
not precisely put the controversy in the form of a
question to be resolved by the Full Bench.
However, the following two questions have
arisen calling for the answer from this Bench :
(a) When a first application for bail
preferred in a pending appeal under
Section 389(1) of the Code has been
considered by a Bench and faced rejection,
should the successive and subsequent
applications, except in exceptional
circumstances, be also placed before the
same Bench or be listed before the Bench
that has been given the roster by the Chief
Justice to deal with such matter?
(b) If the first application for bail has been
preferred under Section 389(1) if one of
the Code and has been rejected by a Bench
and of the members is available, whether
the successive and subsequent application
should be listed before a Bench of which
he is a member or should it go before a
Regular Bench as per roster assigned by
the Chief Justice?”
14. It is submitted that while answering those issues,
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the Hon’ble Full Bench has taken a view that subsequent
application/ second application for the same relief is to be heard
by the same Division Bench who had rejected the earlier bail
application.
15. Mr. Binod Bihari Singh, learned Additional Public
Prosecutor for the State has submitted that as a matter of a
judicial discipline, once a prayer for suspension of sentence and
release on bail of the appellant is either dismissed as withdrawn
or dismissed on merit or stood rejected because of non-
compliance with any peremptory order, the subsequent prayer
for the identical relief need be considered by the same Bench
where the matter was earlier listed, unless the Bench is not
available as a whole or one of the Hon’ble Judges of the Bench
earlier constituted is not available in the Court.
Consideration
16. Having heard learned counsel, we have perused
the Rules of the Patna High Court, Madhya Pradesh High Court,
Allahabad High Court and the Jharkhand High Court besides the
judicial pronouncements on the subject.
17. Rule ’28’ under Chapter VII and Rule ‘4A’ under
Chapter XII of the Patna High Court Rules are as under:-
“28. No application to the same effect or with the
same object as a previous application upon
Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026
14/23which a Judge has passed any order, other than
an order of reference to another Judge or Judges,
shall, except by way of appeal, be presented to
any other Judge or Judges on behalf of any
person on whose behalf such previous
application was presented.
4A. Every petition for appeal, application shall
contain full particulars of the case of the Court
below including case number, Police Case
Number, if any, name of the Session Judge, if
any, and the name of the Trying Magistrate or the
name of the Committing Magistrate as the case
may be. Application for bail shall further state
whether on the same facts or otherwise, a
previous application for bail had been filed in the
Court on behalf of any of the applicants for bail,
an if so, the number of the case, the date of
disposal and result thereof.”
18. Since learned counsel have referred the Rules of
some other Hon’ble High Court, we take note of the same. The
Madhya Pradesh High Court substituted Rule ’16’ to lay down
the procedure to deal with Tied-up Matters. Rule ’15’ of the
Madhya Pradesh High Court Rules clearly laid down that all
subsequent applications under Sections 389(1), 438 and 439 of
the Code of Criminal Procedure, 1973 are to be listed before the
Same Judge/ Bench even if the earlier application was dismissed
for want of prosecution or dismissed as not pressed. Rule ’15’
Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026
15/23
and Rule ’16’ of the High Court of Madhya Pradesh Rules, 2008
are quoted hereunder:-
“15. Subsequent applications for Bail – All
subsequent applications under sections 389(1), 438
and 439 of the Code of Criminal Procedure, 1973,
shall be listed before the same Judge/ bench who/
which had decided the first application, even if earlier
application was dismissed for want of prosecution, or
dismissed as not pressed or withdrawn.
1
[16. (1) Tied up Matters- Whenever a Judge –
(a) is elevated to Supreme Court,
(b) is transferred to other High Court,
(c) demits office,
or
(d) is transferred to other Bench or Principal Seat
of the High Court,
(e) is not available for any other reason and in the
opinion of the Chief Justice, the application,
looking to the urgency in the matter, it cannot wait
for such Judge to resume work;
all matters tied up to him in a –
(i) single bench (except a review petition, which
shall be listed before regular division bench),
shall be listed before the regular bench.
(ii) division bench or full bench, shall be listed
before a bench of which the available Judge(s)
shall necessarily be a member(s).
(2) Where none of the Judges comprising the bench to
which any matter is tied up, is available in terms of
sub-rule (1), such matter shall be listed before the
regular bench.]”
1. Substituted by Notification published in M.P. Gaz. (Extra) dt. 30.07.2010,
Page 801, w.e.f. 10.08.2010
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19. We have taken note of the Rule ’14’ under Chapter
V of the Allahabad High Court Rules and Rule 68(3) of the
Jharkhand High Court Rules hereinabove, therefore, those are
not being extracted hereunder.
20. On a bare reading of Rule ’28’ under Chapter VII
of the Patna High Court Rules, we have no iota of doubt that
this Rule itself mandates in positive words and has been posed
in such a way that it leaves no room to take any other view save
and except to say that the subsequent application for suspension
of sentence and release on bail of the appellant would be
required to be placed before the same Hon’ble Judge/ Bench.
Rule ’28’ starts with a negative covenant and it is followed by
the word “shall”, therefore, the mandate is very clear, the Rule is
required to be adhered to without any exception.
21. Apart from the Rules of the Patna High Court,
there are judicial pronouncements on the subject which have
settled the judicial opinion in the matter of listing of the
subsequent application for bail. We reproduce the discussions
available in paragraphs ’10’, ’11’, ’12’ and ’13’ of the order of
the Hon’ble Division Bench hereunder for a ready reference:-
“10. In the case of Shahzad Hasan Khan v.
Ishtiaq Hasan Khan and Another, reported in
(1987) 2 SCC 684, the Hon’ble Supreme Court
Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026
17/23was considering a matter in which successive
bail applications were filed by an accused-
respondent No.1. His two initial attempts went
futile before the trial court for the grant of bail.
Earlier, his application for bail was rejected by a
Hon’ble Judge of the High Court, but when the
subsequent application was filed, the same was
posted before another learned Judge, who,
having regard to the judicial discipline and
prevailing practice in the High Court, directed
that the bail application be listed before the
earlier Hon’ble Judge who had passed the order
rejecting the earlier applications for bail. While
the application was pending before the High
Court, the earlier Hon’ble Judge was sitting in a
Division Bench and the respondents’ counsel
appeared before him seeking his permission for
listing the bail application before him. The
learned Judge passed an order releasing the bail
application, but in spite of that the bail
application was not listed before another Hon’ble
Judge in stead it came before the same Hon’ble
Judge who had earlier rejected the prayer. On
that date, learned counsel for respondent No.1,
for some unknown reason, did not press the bail
application and at his request, the application
was dismissed as withdrawn. In the
aforementioned background, when the
respondent No.1 made another application, the
same was listed before another Hon’ble Judge,
but it was ordered to be listed before the earlier
Hon’ble Judge, whereafter the said order was
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recalled and once again the matter was taken up
by another Hon’ble Judge, who granted bail to
the respondent No.1. The Hon’ble Supreme
Court having considered the entire circumstances
recorded the convention that subsequent bail
application should be placed before the same
Hon’ble Judge, who had passed the earlier order.
The observations of the Hon’ble Supreme Court
as recorded in paragraph 5 of the judgment in
case of Shahzad Hasan Khan (supra) are as
under:
“5. 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. Bajpai 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
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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 courts’ 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.”
(underline is mine)
11. A similar issue came for consideration before
the Hon’ble Full Bench of the Madhya Pradesh
High Court in the Case of Santosh Bhawani
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Singh vs. State of M.P. (F.B.) reported in 2000
Cri. L.J. 1834. The Hon’ble Full Bench of the
Madhya Pradesh High Court observed in
paragraph ‘3’ of the judgment as under: –
“3. The posting of the subsequent bail
applications before the same Bench which had
earlier rejected an application, was never
considered to be an imperative of law, but this
requirement was recognized in view of the long
standing convention and judicial discipline. It
was observed in Shahzad Hasan Khan‘s case
that the convention that subsequent bail
application should be placed before the same
Judge who may have passed earlier orders has
its roots in principle as it prevents abuse of
process of Court and obviates possibility of an
impression that a litigant is shunning or
selecting a Court depending on whether the
Court is to his liking or not. It was further
observed that 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,
therefore, judicial discipline required that such
matters were placed before the same Judge, if he
was available, for orders. Again, in a case where
an accused had been enlarged on bail for a
period of two months after his applications had
earlier been rejected by another Bench, it was
observed in State of Maharashtra v.
Buddhikota Subha Rao AIR 1989 SC 2292
that in such cases it was necessary to act with
restraint and circumspection so that the process
of the Court was not abused by a litigant and an
impression was not created that a litigant has
either successfully avoided one Judge or
selected another to secure an order which he had
not been able to obtain. It was emphasized that
in such a situation, the proper course was to
direct that the matter be placed before the same
Judge who had disposed of the earlier
Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026
21/23application. The observations contained in
Paragraph 7 of the report read as extracted
below :–
“7. In such cases it is necessary to act with
restraint and circumspection so that the
process of the Court is not abused by a
litigant and an impression does not gain
ground that the litigant has either
successfully avoided one judge or selected
another to secure an order which had
hitherto eluded him. In such a situation the
proper course, we think, is to direct that the
matter be placed before the same learned
judge who disposed of the earlier
applications. Such a practice or convention
would prevent abuse of the process of Court
inasmuch as it will prevent an impression
being created that a litigant is avoiding or
selecting a Court to secure an order to his
liking. Such a practice would also
discourage the filing of successive bail
applications without change of
circumstances. Such a practice if adopted
would be conducive to judicial discipline
and would also save the Court’s time as a
judge familiar with the facts would be able
to dispose of the subsequent application
with despatch. It will also result in
consistency. In this view that we take we are
fortified by the observations of this Court in
Paragraph 5 of the judgment in Shahzad
Hasan Khan v. Ishtiaq Hasan Khan (1987) 2
SCC 684 : AIR 1987 SC 1613 :(1987
Cri.L.J. 1872).””
12. The Hon’ble Full Bench referred the Division
Bench judgment in the case of Munna Singh vs.
State of M.P. reported in 1989 MPLJ 414 (1990
Cri LJ 49) wherein it was observed that even if
the earlier bail application had been dismissed as
withdrawn or not pressed, a subsequent bail
application of the same applicant should be
Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026
22/23
placed for hearing before the same Judge who
had rejected the earlier bail application, so long
as he was available.
13. A similar view has been taken in the case of
State of Maharashtra v. Budhikota Subbarao
(Dr), reported in (1993) 2 SCC 567.”
22. In course of submissions, learned counsel have
agreed that as a matter of practice whenever a particular Bench
expresses its inability to accept the submissions of learned
counsel for grant of suspension of sentence and bail, in order to
avoid the observations of the Court in the order, the counsel
seeks permission of the Court to withdraw the application. Such
prayers are allowed and the learned counsel for the appellant are
permitted to withdraw the prayer at that particular stage with
liberty to the appellant to file a fresh plea as and when advised.
Such order of withdrawal though looks withdrawal simpliciter
but as a matter of practice those orders are passed only on the
request of learned counsel for the appellant when they are
unable to persuade the Court to take a favourable view of the
matter. In the light of the aforementioned discussions, this Court
answers the reference in the chronological order hereinafter:-
(i) A subsequent application/ prayer for suspension of
sentence and grant of bail after withdrawal of identical
application/ prayer before a Bench must be placed before the
Patna High Court CR. APP (DB) No.657 of 2024(11) dt.24-04-2026
23/23same Division Bench if the Hon’ble Judges who constituted the
earlier Bench are still available.
(ii) This Court affirms that in case one of the Hon’ble
Judges who formed the earlier Division Bench has either retired
or transferred from this Court, the subsequent application for the
identical relief be listed before a Division Bench to which the
another Hon’ble Judge who was on the earlier Division Bench
shall be party, if His Lordship is still available.
23. Reference is, accordingly, answered.
24. List this matter before the appropriate Bench for
consideration of the subsequent application for suspension of
sentence and release on bail.
(Rajeev Ranjan Prasad, J)
( Mohit Kumar Shah, J)
( Sanjay Kumar Singh , J)
A.F.R.
SUSHMA2/-
U
