Improper For HC Judge To Not Refer Bail Plea To Earlier Judge Citing Roster Change : Supreme Court

The Supreme Court recently criticised a High Court Judge for not referring a regular bail application to the earlier bench, which had dealt with the anticipatory bail application from the same FIR, citing the reason that the earlier judge's roster had changed.

The Court observed that such reasoning adopted by the High Court Judge was not proper.

A bench comprising Justice Ahsanuddin Amanullah and Justice SVN Bhatti was dealing with a petition challenging the bail granted to two accused persons. The bench noted that at the Delhi High Court, the appellant had requested the Single Judge to refer the matter to the earlier Judge who had dismissed the anticipatory bail application. However, this request was rejected on the ground that the earlier Judge's roster had changed and he was sitting in a Division Bench.

Disapproving of this approach, the Supreme Court observed :

"The rejection of the plea of transfer on the apparent reasoning that the learned Single Judge's roster had changed and was sitting in a Division Bench on that date was not proper. Recording such reason(s) gives the impression that had the learned Judge (who dismissed the anticipatory bail applications) not undergone a change of roster or not been part of a Division Bench on that date, the matters might have been referred to the said Judge."

The judgment authored by Justice Amanullah stated that a Bench cannot consider the present composition/roster of the earlier Bench while deciding whether to refer a matter. It is only the prerogative of the Chief Justice to refer a matter.

"We further observe that it is not for any Court, while referring a matter to a co-ordinate Bench, to consider the composition in which that Bench is sitting, at the relevant time. That is the sole prerogative of the learned Chief Justice of the Court concerned, in whom, alone, rests and vests the power of constituting Benches, whether by way of a special order or in regular course. Even otherwise, de hors, whether or not an order of transfer is passed by any Judge other than the concerned Chief Justice, the Registry of that Court shall not give effect to the same, till suitable/appropriate orders are passed by the Chief Justice. As and when any order of transfer is placed before the learned Chief Justice, it is for him/her to determine the appropriate Bench, either by treating the matter as a special case or by assigning it in accordance with the prevailing roster, or even re-allocating the case to the same Bench which had referred it."

 In this regard, the bench referred to the recent order passed on February 7, in Shekhar Prasad Mahto v The Registrar General Jharkhand High Court, which observed that the general rule mandating listing of bail applications before the same bench can be relaxed if the roster of the earlier bench has changed. The said order was passed taking note of the delays in hearing bail applications in situations where the roster of the earlier judge has changed.

The present bench however clarified that the said order will not take away a Judge's power to refer the bail applications to the earlier Judge, subject to the Chief Justice's approval.

"For the moment, we rest our observations on this issue here, noting that the above observations do not take away a learned Judge's power to refer the matter to the earlier Judge, if so warranted – subject to orders of the learned Chief Justice."

Also from the judgment - Supreme Court Orders Two Delhi Judicial Officers To Undergo 'Special Training' For 'Perverse' Order Granting Bail