Gujarat High Court
Rajubhai vs State on 28 June, 2011
Author: K.M.Thaker
Bench: K.M.Thaker
CR.MA/16247/2011 9 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 16247 of 2011 ========================================================= RAJUBHAI BABABHAI BHIL - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MR AD SHAH for Applicant(s) : 1, MR JK SHAH APP for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 10/04/2012 ORAL ORDER
1. Heard Mr. A.D. Shah learned advocate for the applicant and Mr. J.K. Shah, learned AGP for the respondent State.
2. The applicant has preferred present successive application seeking regular bail under Section 439 of Code of Criminal Procedure 1973 in connection with the offence registered with Mahuva Police Station bearing C.R. No.I-53 of 2011 for the offences punishable under Section 307, 323, 143, 147, 149 of Indian Penal Code.
3. This is successive application after chargesheet came to be filed.
4. The learned Counsel appearing for the applicant has submitted that present successive application has been preferred on the ground that the applicant is in custody from April 2011 and the trial has yet not commenced.
5. It is, essentially, only on the said ground that present successive application has been preferred though, learned Counsel appearing for the applicant attempted to once again raise the contentions which were raised on previous occasion when the applications preferred earlier by present applicant were, after raising all contentions, withdrawn.
6. Though the contentions on ground of request for enlarging on bail, the accused in offence punishable under Section 307 were vehemently urged on previous occasion, the learned Counsel appearing for the applicant raised the said contention. The learned Counsel for the applicant placed reliance on the decision in case of Sanjay Chandra vs. C.B.I. (2012 [1] SCC 40). So as to support his submission that considering the fact that in present case the offence is punishable under Section 307 the applicant may be enlarged on bail, he also placed reliance on various other orders passed in other cases wherein the case were registered for offence punishable under Section 307 of Indian Penal Code (i.e. order dated 28.6.2011 in Criminal Misc. Application 8081 of 2011, order dated 28.7.2011 in Criminal Misc. Application No. 9658 of 2011, order dated 29.7.2011 in Criminal Misc. 10528 of 2011). In support of the said submission he also relied on the decision of Apex Court in case of Rekha Mandal and others vs. State of Bihar (1967 CAR 108 (SC)) and another decision of Apex Court in case of Jai Narayan Mishra and other vs. State of Bihar (1972 SCC (cri.) page 40) and the decision by the Apex Court in case of Bhausaheb Nagu Dhavare vs, State of Maharashtra (2001 (3) crimes page 410).
7. Learned AGP Mr. Shah has opposed the application on the ground that this successive application does not deserve to be entertained. With reference to the other submissions which the learned Counsel for the applicant attempted to raise learned AGP submitted that the said contentions cannot be raised or permitted to be raised in present successive application. He also submitted that withdrawal of the previous application amounts to rejection of the application and therefore the application may not be entertained.
8. As mentioned earlier, present application is a successive bail application after the applicant had withdrawn the earlier applications, after having unsuccessfully argued the application at length.
9. Before the chargesheet was filed the applicant had preferred . Criminal Misc. Application No.7409 of 2011 which was withdrawn under order dated 14.6.2011. Thereafter, when the chargesheet was filed the applicant herein preferred another . Criminal Misc. Application No. 10902 of 2011 which was also withdrawn under order dated 16.9.2011.
10. The said application being Misc. Criminal Application No.10902 was filed on or around 29.7.2011 and now within period of 4 months present successive application has been preferred which is filed on or around 24.11.2011.
11. Within 4 months after having withdrawn previous application, the applicant has preferred present successive application on the solitary ground that since trial has yet not commenced the application may be entertained and the applicant may be enlarged on bail.
12. It is noticed from the submissions of learned counsel for the applicant and learned AGP that in the interregnum the charge has already been framed.
13. At the time when the previous applications preferred by present applicant were heard, all contentions available to the applicant, including the contention that the case has been registered in connection with offence punishable under Section 307 of Indian Penal Code and there was no intention to kill, there are no antecedent were urged during the hearing and after arguing the application at length on available contentions, they were withdrawn.
14. Besides this, it has been held in State of Gujarat vs Ashish B. Gandhi (1993 [1] GLH 268) that withdrawal of application would amount to rejection of the application. The Court has observed, inter alia, that:-
"8.......
Once the earlier application of the respondent - accused was not pressed and the same was withdrawn, it amounts to an order of dismissal and in absence of fresh ground of change in circumstances, the accused should not have been released on bail by the learned Judge.......
"....
It was not open to the learned Judge to go into the merits of the case and decide the same. Because, once the earlier bail application was withdrawn it has to be presumed that all possible contentions must have been raised before the Court and the court was not inclined to accept the same and release the accused on bail and, therefore, only the bail application was not pressed by the advocate for the accused at that time. Under these circumstances, if the court has allowed to withdraw that petition it is nothing but an order of dismissal and, therefore, in absence of any change in circumstances or any fresh grounds, the learned Judge ought not to have entertained the bail application and decided the same on merits and released the respondent - accused on bail....
In absence of change in circumstances, present application amounts to seeking review of the previous orders, which is not permissible in law.
In case of State of Madhya Pradesh vs. Kajad (2001 [7] SC 673) the Apex Court has observed that:-
"8.
It has further to be noted that the factum of the rejection of his earlier bail application on bearing Misc. Case No.2052 of 2000 on 5.6.2000 has not been denied by the respondents. It is true that successive bail applications are permissible under the changed circumstances. But without the change in the circumstances the second application would be deemed to be seeking review of the earlier Judgment which is not permissible under criminal law as has been held by this Court in Hari Singh Mann Vs. Harbhajan Singh Bajwa, (2001 [1] SCC 169) and various other judgments."
In the decision in the case of State of Madhya Pradesh v. Kajad [2001 (7) SC 673], the Apex Court has observed that:-
".......successive bail applications are permissible under the changed circumstances. But without the change in the circumstances the second application would be deemed to be seeking review of the earlier Judgment which is not permissible under Criminal Law....... "
15. Furthermore, the contention or the reason that the trial has yet not commenced, would not amount to change in circumstances.
16. Even if it is assumed that in certain circumstances successive application may be entertained, e.g. on account of change in circumstances, then the only ground that since the withdrawal of previous application the trial has yet not begun, would not amount to change in circumstance. It is more so in present case inasmuch as the applicant had preferred previous application in July 2011 and within span of 4 months i.e. in November 2011 present application has been preferred.
17. So far as change in circumstances concerned, the Apex Court has observed that change in circumstance should be substantive and not mere cosmetic change.
For maintaining a successive bail application what is necessary, as observed by the Apex Court, is "substantive change" and not mere "cosmetic change" or "peripheral change"
in the erstwhile circumstances and that the change ought to be such which would have "impact on the previous decision."
In this context reference may be made to the observations by the Apex Court in State of Maharashtra vs. Captain Buddhikota Subha Rao (AIR 1989 SC 2292) wherein the Apex Court has observed that:-
7....
Once that application was rejected there was no question of granting a similar prayer. That is virtually overruling the earlier decision without there being a change in the fact situation. And when we speak of change, we mean a substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or not consequence....
The Apex Court has further explained the concept of "change in circumstance" in the case of Kalyan Chanrda Sarkar v. Rajesh Ranjan @ Pappu Yadav & Anr. [2005 (3) GLH 601] and the Apex Court has observed and held that:-
"19. ......
Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Therefore, we are not in agreement with the argument of learned counsel for the accused that in view the guaranty conferred on a person under Article 21 of the Constitution of India, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by courts earlier including the Apex Court of the country."
18. Under the circumstances present application does not fall even in the category of "application preferred on account of change in circumstances". In such event, present applicant would, as mentioned above, amount to reviewing the previous order. For this reason also this application does not deserve to be entertained.
19. So far as the reliance placed on the decision of the Apex Court in case of Sanjay Chandra (supra) is concerned, it is relevant to observe that in the facts and circumstances in present case the said decision would not help the applicant to carry his case and request any further inasmuch as the facts of the cited case stand on different platform. In case of Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav (2005 [3] G.L.H. 601 the Apex Court has observed that:-
"41.
While deciding the cases on facts, more so in criminal cases the court should bear in mind that each case must rest on its own facts and the similarity of facts in one case cannot be used to bear in mind the conclusion of fact in another case (See: Pandurang and Anr. vs. State of Hyderabad (1955 1 SCR 1083). It is also a well established principle that while considering the ratio laid down in one case, the court will have to bear in mind that every judgement must be read as applicable to the particular facts proved or assumed to be true. Since the generality of expressions which may be found therein are not intended to be expositions of the whole of the law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. A case is only an authority for what it actually decides, and not what logically follows from it."
As regards the reliance placed on other orders is concerned, the said orders are passed in light of the facts of the respective case and such order would not make precedence for this case which stands on different footing. So far as the decision in case of Rekha Mandal (supra) is concerned, the Hon'ble Apex Court observed in the said case that the evidence did not disclose who wielded which weapon, while in present case specific role is attributed against the petitioner and there is specific allegation that the petitioner was armed with Dhariya and he inflicted blow on the victim's head. In the said case the Apex Court also observed that alleged offence did not go beyond Section 324. Furthermore, the observations in the decision are not with reference to an application seeking bail. In case of Bhausaheb Nagu Dhavare (Supra) the Apex Court has passed order in light of the facts of the said case which stand on different footing, including the fact that the said case does not appear to be a case of successive bail application. Likewise, in case of Jai Narain Mishra (supra) the observation by the Hon'ble Apex Court in the cited case are not made from perspective of successive bail application or from perspective of request for releasing the accused on bail.
Having regard to the above mentioned observations by the Apex Court in case of Kalyan Chandra Sarkar (supra) the observations made by the Hon'ble Apex Court in the above referred decisions, the orders do not help the accused - application to take his case any further. In light of the facts and circumstances of present case and having regard to the above mentioned observation by the Apex Court in case of Kalyan Chandra (supra) the said orders are of no assistance to the applicant.
20. On overall consideration of the application and also in light of the fact that any change in circumstance is not established and present application is successive application and review of the previous orders is not permissible and in view of the foregoing discussion, I am not inclined to accept and entertain present application. The application does not deserve to be entertained. Therefore the application is rejected.
(K.M.THAKER,J.) Suresh*