Research › Search › Judgment

Bombay High Court · body

2005 DIGILAW 1529 (BOM)

Ganesh s/o. Sukhanda Mhastke v. State of Maharashtra

2005-11-13

A.H.JOSHI

body2005
JUDGMENT :. Heard at length. Present Applicant alongA1ith other three accused, namely Horilal, Isak and Nandu have been named as accused in First Information Report lodged by Sunil Jibhe. Initially, the Bail Application No.2596 of 2004 was filed by two accused, namely Ganesh Mohan Maste and Isak alias Vishal Maste. Criminal Application No.2196 of 2004 was filed by the remaining two accused persons, namely Horilal and Isak. These applications were filed when applications for bail filed by them in Sessions Trial No.242 of 2004, namely Exhs.5 and 2 respectively, were rejected by the Sessions Court by Order, dated 21st August, 2004. It was a common order below Exh.2 and Exh.5. It appears that Exh.2 was the bail application of other two accused Horilal and Isak, who were applications in Criminal Application No.2969 of 2004. 2. Both above referred applications were heard by this Court (Coram: K. J. Rohee, J.) and decided by order on 25th October, 2004. Bail was granted to accused Horilal Mohan Maste. In the result, the bail plea of another accused was not considered favourably. It is seen from the foot note given by the applicant in Criminal Application No.2596 of 2004 that said application by present applicant and Nandu was allowed to be withdrawn. 3. Present applicant; who was applicant in Criminal Application No.2596 of 2004, filed another Bail Application No.1476 of 2004. It is seen from perusal of contents thereof that he did not disclose filing of earlier application. 4. In the Application No.1476 of 2004, the applicant represented that said application was filed by him under Section 439, Criminal Procedure Code, as his application for bail (Exh.5) was rejected by the Sessions Court. This application, namely 1476 of 2005, was listed before the Judge to whom the criminal work, in question, was assigned (Coram: A. H. Joshi, J.). Normally; it being a second bail application, it ought to have been listed before Hon'ble Shri. Justice K. J. Rohee, His Lordship having rejected earlier application, however, since the fact of earlier application being filed and withdrawn was not disclosed, this course was not followed by the office. 5. Normally; it being a second bail application, it ought to have been listed before Hon'ble Shri. Justice K. J. Rohee, His Lordship having rejected earlier application, however, since the fact of earlier application being filed and withdrawn was not disclosed, this course was not followed by the office. 5. Application No.1476 of 2005 contained a foot note, which reads as follows: "No such application has been filed prior to this either before this Hon'ble Court or before Supreme Court of India." Due to aforesaid note, the Office of High Court as well as learned Additional Public Prosecutor were bound to be carried with the said declaration being made with solemnity by the Advocate in the instructions of his client. Said declaration could not have been sworn because the applicant was in jail. 6. It seems that filing of earlier Application No.2596 of 2004 was even not brought to the notice of the Court from the side of the State. The application was regarded as if coming for the first time. 7. This Court then heard, decided that Application No.1476 of 2005 on merit and dismissed the same by Order, dated 22nd June, 2005, as if it was first bail application before this Court. 8. Now present bail application has come forward. 9. It is seen from the application that learned Advocate has made a statement in paragraph 8 of the application about granting of bail to Horilal Maste by this Court (Coram: K.J. Rohee, J.) in Criminal Application No.2596 of 2004. This reference is given in order to contend that even by applying the rule of parity, the applicant would be entitled to bail, though his case is better on merits. According to applicant, even he need not claim parity, since Horilal, who was released on bail in Application No.2969 of 2004, was having a sword with him, while the accused is shown to possess only a stick. 10. These facts are narrated only in order to place on record that the applicant has shown scant respect for the law. He has not disclosed to his Advocate that his earlier bail application was rejected, and when he lost in the second application, now he wants his learned Advocate to argue the case on the point of parity of the facts of first application which were suppressed while deciding second application. He has not disclosed to his Advocate that his earlier bail application was rejected, and when he lost in the second application, now he wants his learned Advocate to argue the case on the point of parity of the facts of first application which were suppressed while deciding second application. Had the disclosure been so made in the former application, namely 1476 of 2004, the situation would have been that it would have normally gone to the same Hon'ble Judge who heard the case. These things are recorded in order to let the contesting Advocates from both the sides to caution themselves as to knowing or unknowing lack of scruples which the litigants exhibit. 11. While the prayer for bail was already rejected, listing of subsequent application for bail, namely 1476 of 2004, before some other Judge would, for all practical purposes, have amounted to 'forum shopping' at the hands of a salesman of a choice, and it would have proved to be one more serious attack on the basic faith with which the masses look forward towards the Court. It is a matter of coincidence that Application No.1476 of 2004, too, met the fate of rejection, as this Court found on merits that the applicant was not entitled for bail. 12. This Court has examined the merits of case before it discovered the circuitous mode adopted by the applicant. 13. While examining present application on merits, it is seen that while deciding Criminal Application No.1476 of 2004, this Court had already noted that it was seen from the Post-mortem report that the deceased had suffered the fatal blow on the head, and the head injury was the cause of death. It is clear that the injury suffered on the head was due to the stick blow, and not due to the sword. Present application based on a claim which is synonymous to the claim of parity has no merit even otherwise. 14. Noticing that the Court is not convinced in favour of granting the application, learned Advocate prayed for permission to withdraw the application. 15. Though the learned Advocate has prayed for withdrawal of application, this Court would not like to be instrumental for equipping the present applicant to file one more application. 14. Noticing that the Court is not convinced in favour of granting the application, learned Advocate prayed for permission to withdraw the application. 15. Though the learned Advocate has prayed for withdrawal of application, this Court would not like to be instrumental for equipping the present applicant to file one more application. If, however, the applicant is entitled in law to apply for bail on fresh grounds, none can put fetters on it, and merits thereof will have to be assessed independently. 16. Present application is, therefore, liable to be dismissed, and is dismissed.