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2010 DIGILAW 457 (GUJ)

Veja Parbat Bhutiya v. State of Gujarat

2010-09-28

RAJESH H.SHUKLA

body2010
Judgment Rajesh H. Shukla, J.— Rule. Learned APP Ms. Manisha Lavkumar waives service of rule for the Respondent-State. 2. The present application has been filed by the Applicant-original accused for grant of regular bail under Section 439 of the Code of Criminal Procedure which is a successive bail application. 3. The Applicant-accused is charged with having committed offence under Section 302 of IPC for which FIR, being C.R. No. I-170/2005, has been registered with Kamlabaug Station, Porbandar. 4. Learned Advocate Mr. Dagli referred to the papers and the chequered history of the proceedings including qua other co-accused and submitted that the Court may consider the development in the facts of the case that after conclusion of the trial on 14.11.2008, the application was made to arraign other co-accused as a party, which led to further litigation and the Hon’ble Apex Court has made a reference to a larger Bench. He submitted that, therefore, till the reference is decided, the applicant is required to be released. 5. Learned Advocate Mr. Dagli also referred to the papers and submitted that except some statement of the co-accused, there is no material and evidence suggesting the involvement and therefore the present application may be allowed. He referred to and relied upon the judgment of this Court reported in 2004 (3) GLH 297 in the case of Patel Vishnubhai Shivrambhai vs. State of Gujarat and submitted that in that case also there were similar facts that the trial was stayed at the fag end when the statement under Srction 313 of CrPC was recorded. He therefore submitted that considering the provisions of Art. 21 of the Constitution of India, when the bail is a right, the present application may be entertained. He submitted that grant of bail is the rule and refusal is an exception. He emphasised that liberty of a person under Art. 21 is required to be considered and long incarceration is also required to be considered in light of the reference pending before the Hon’ble Apex Court. 6. Learned APP Ms. Manisha Lavkumar has submitted that the present application is a successive bail application. The applicant accused has earlier filed Criminal Misc. Application No. 78/2010 before the Sessions Court, which came to be rejected. He had also preferred Criminal Misc. Application No. 6651 of 2006 before this Court, which was withdrawn vide order dated 22.11.2006. 6. Learned APP Ms. Manisha Lavkumar has submitted that the present application is a successive bail application. The applicant accused has earlier filed Criminal Misc. Application No. 78/2010 before the Sessions Court, which came to be rejected. He had also preferred Criminal Misc. Application No. 6651 of 2006 before this Court, which was withdrawn vide order dated 22.11.2006. It was further submitted that the other co-accused, who were sought to be arraigned at a later stage, had filed bail application which led to further litigation and the Hon’ble Apex Court considering the gravity of offence has not entertained the application of the co-accused for grant of bail with similar charges and submitted that considering the gravity of offence, the role attributed and also the fact that other co-accused are also not released, the present application may not be entertained. 7. Learned APP Ms. Lavkumar has also submitted that the present application is a successive bail application and there are no change in the material circumstances inasmuch as when the earlier bail application was rejected, the trial was stayed at that time and the matter was referred to a larger Bench. However, there is no change so far as the merits of the case is concerned. She further submitted that appreciation of evidence may not be made by this Court at this stage, particularly when the Hon’ble Apex Court has stayed the further proceedings and appreciation of evidence for the purpose of bail is otherwise not made and therefore this Court may not go into the merits and also reach any conclusion before the judgment is pronounced by the Hon’ble Apex Court. She further referred to other aspects about the role and the conspiracy and submitted that the present application may not be entertained. 8. Learned Sr. Counsel Mr. N.D. Nanavaty appearing with Learned Advocate Mr. Mangukiya for the original complainant has referred to the papers and submitted that the applicant who comes before the Court for discretionary relief must come with full disclosure of the facts and the record. He referred to the affidavit filed at page 110 and also the record and submitted that in Para 4 of the application it is stated that except Criminal Misc. Application No. 78/2010, no other petition has been made including before the Hon’ble Apex Court or before the Sessions Court. He referred to the affidavit filed at page 110 and also the record and submitted that in Para 4 of the application it is stated that except Criminal Misc. Application No. 78/2010, no other petition has been made including before the Hon’ble Apex Court or before the Sessions Court. However, it is conveniently not mentioned about an earlier application made before this Court being Criminal Misc. Application No. 6651/2006, which was withdrawn and also Criminal Misc. Application No. 136 of 2009 before the Sessions Court which was rejected. 9. Therefore, learned Sr. Counsel Mr. Nanavaty submitted that once the Hon’ble Apex Court has declined to entertain the petition for bail after considering all the relevant aspects including the delay and pending hearing of the reference which may take time, the present application may not be entertained. 10. In rejoinder, Learned Advocate Mr. Dagli referred to the order passed dby the Hon’ble Apex Court which is produced at page 16 in SLP (Cri) No. 9184 of 2008 dated 5.1.2009 and submitted that the Hon’ble Apex Court has permitted the original accused therein to apply for bail which means all the accused as it was not confined to the applicant therein and therefore the present application may be entertained. 11. In view of rival submissions, it is required to be considered whether the present application can be entertained or not. 12. It is required to be noted that the present application is a successive bail application and there has to be some material change in the fact-situation and not mere cosmetic change as observed by the Hon’ble Apex Court in a judgment in the case of State of Maharashtra vs. Captain Buddhikota Subha Rao, reported in AIR 1989 SC 2292 . Therefore, what is required to be considered is what are the change of circumstances and Learned Advocate Mr. Dagli has emphasised with regard to the litigation before the Hon’ble Apex Court and the stay granted on further trial in light of the reference made to a larger Bench. 13. Therefore, the main point emphasised is the possibility of delay which alone cannot be a factor to be considered in such cases. It is required to be mentioned that Criminal Misc. 13. Therefore, the main point emphasised is the possibility of delay which alone cannot be a factor to be considered in such cases. It is required to be mentioned that Criminal Misc. Application No. 78/2010 has been preferred before the Sessions Court after special leave petition being SLP (Cri) No. 9184/2008 was preferred before the Hon’ble Apex Court in which order was passed referring to the larger Bench. The Applicant had earlier moved the Sessions Court by way of Criminal Misc. Application No. 136 of 2009 which came to be rejected. 14. Therefore, considering the aforesaid circumstances as well as the nature of offence, the manner in which it is alleged to have been committed and the role attributed, the Court is not inclined to entertain the present application. 15. A useful reference can be made to the observations made by the Hon’ble Apex Court in a judgment in the case of Kalyan Chandra Sarkar etc. vs. Rajesh Ranjan alias Pappu Yadav and another, reported in AIR 2005 SC 921 ,wherein it has been observed with reference to successive bail application and liberty under Article 21 as under: “It is a trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non-bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. But even persons accused of non bailable offences are entitled for bail if the Court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the Court is satisfied for reasons to be recorded that in spite of the existence of prima facie case there is a need to release such persons on bail where fact situations require it to do so. In that process a person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In that process a person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In such cases if the circumstances then prevailing requires that such persons to be released on bail, in spite of his earlier applications being rejected, the Courts can do so. 16. Another facet of the argument which Learned Advocate Mr. Dagli has emphasised is with regard to the evidence against him in the trial which cannot be gone into and discussed inasmuch as it is well accepted that this Court is not required to appreciate or scrutinize the evidence in detail at this stage. Further, when the matter is stayed by the Hon’ble Apex Court, the evidence cannot be appreciated or scrutinized by this Court which would otherwise amount to deciding on merits one way or the other before the judgment is pronounced by the learned Sessions Court in light of the directions of the Hon’ble Apex Court, which is not permissible. 17. In the circumstances, the present application cannot be entertained and it deserves to be rejected and accordingly stand rejected. Rule is discharged.