Safiya Malik

The Madras High Court has referred the question of whether successive bail applications should be listed before the same judge who had previously decided a similar plea or before the roster judge to a larger bench. The court noted that while successive bail applications have traditionally been placed before the same judge, recent Supreme Court directives on listing bail applications related to the same FIR before one judge have created uncertainty in High Courts that follow a roster system. The court sought clarification on whether the Supreme Court's guidance applies only to cases involving multiple accused in the same FIR or also to successive bail applications of the same accused.

The petitioner had filed a second bail application under Section 483 of the Bharatiya Nyaya Sanhita, 2023, seeking bail in Crime No. 39 of 2024 registered at the Sulur Police Station, Coimbatore District. The petitioner’s first bail application had previously been dismissed by Justice C.V. Karthikeyan. The present bail application came before Justice Sunder Mohan due to the High Court’s roster system.

The court noted that, until now, the established practice in the High Court had been that if a bail petition or anticipatory bail petition was dismissed by one judge, any subsequent bail petition by the same accused would be listed before the same judge. However, due to the roster system, bail applications of accused persons arising from the same FIR had sometimes been placed before different judges, leading to inconsistent decisions.

The court referred to recent Supreme Court judgments that had addressed the issue of listing bail petitions arising from the same FIR before the same judge. It cited Sajid v. State of Uttar Pradesh (2023 SCC OnLine SC 1816), where the Supreme Court observed:

"We have come across various matters from the High Court of Allahabad, wherein matters arising out of the same FIR are placed before different Judges. This leads to an anomalous situation. Inasmuch as some of the learned Judges grant bail and some other Judges refuse to grant bail, even when the role attributed to the applicants is almost similar."

The Supreme Court directed that all bail applications arising from the same FIR should be placed before the same judge to ensure consistency in decisions. This order was reiterated in Rajpal v. State of Rajasthan (2023 SCC OnLine SC 1714) and Kusha Duruka v. State of Odisha (2024) 4 SCC 432.

Justice Sunder Mohan noted that while the Supreme Court had addressed the issue of listing bail petitions of different accused in the same FIR before one judge, the clarification regarding successive bail applications of the same accused was not explicitly provided. The court cited the Supreme Court’s order in Shekhar Prasad Mahto v. Registrar General, Jharkhand High Court (WP (Crl) No. 55 of 2025), which observed:

"If in a particular High Court, the bail applications are assigned to different single Judges/Benches, all applications arising out of the same FIR should be placed before one learned Judge. However, if on account of a change of the roster, the learned Judge who was earlier dealing with the bail matters is not taking up the bail matters, the aforesaid directions would not be applicable."

The court noted that in High Courts following a roster system, judges assigned to bail matters may change periodically, and a judge who had previously denied bail might not be available to hear a successive bail application.

Justice Sunder Mohan pointed to a long-standing precedent that successive bail applications should be placed before the same judge. The Supreme Court in Shahzad Hasan Khan v. Ishtiaq Hasan Khan (1987) 2 SCC 684 held:

"The convention that subsequent bail applications 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."

The Supreme Court in State of Maharashtra v. Captain Buddhikota Subha Rao (1989 Supp (2) SCC 605) reaffirmed this principle, stating:

"The proper course 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 an impression being created that a litigant is avoiding or selecting a court to secure an order to his liking."

Justice Sunder Mohan noted that two other judges of the Madras High Court had recently taken a different view following the Supreme Court’s clarification in Shekhar Prasad Mahto, directing successive bail applications to be listed before the roster judge. However, he expressed his disagreement with this view, stating that judicial discipline required the issue to be referred to a larger bench for determination.

The court referred the following question for determination by a larger bench:

"Whether the clarification issued by the Hon'ble Supreme Court in Shekhar Prasad Mahto @ Shekhar Kushwaha v. The Registrar General, Jharkhand High Court [WP (Crl.) No. 55 of 2025, decided on 07.02.2025], is only with regard to the listing of the applications filed by the accused in the same FIR or is also with regard to the listing of successive bail applications of an accused before the roster Judge, even if the Judge who dealt with the earlier application for bail/anticipatory bail is available?"

The court directed the registry to place the matter before the Chief Justice for appropriate orders to constitute a larger bench. It also directed the registry to expedite the process, considering that the matter involved bail petitions.

Case Title: Y. Babu v. The Inspector of Police, Sulur Police Station
Case Number: Crl.O.P. No. 31787 of 2024
Bench: Justice Sunder Mohan

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