Gujarat High Court
Abhijit Prabhakar Konduskar vs State Of Gujarat & on 27 April, 2016
Author: Anant S.Dave
Bench: Anant S. Dave
R/CR.MA/2611/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR TEMPORARY BAIL) NO.
2611 of 2016
In CRIMINAL MISC.APPLICATION NO. 17689 of 2014
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ABHIJIT PRABHAKAR KONDUSKAR....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MS.DILBUR CONTRACTOR, ADVOCATE for the Applicant(s) No. 1
MR HRIDAY BUCH, ADVOCATE for the Respondent(s) No. 2
MSD MOXA THAKKER ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
Date : 27/04/2016
ORAL ORDER
1. This application is preferred in pending regular successive bail application being Criminal Misc. Application (For Regular Bail) No. 17689 of 2014 in connection with FIR registered with various offence under NDPS Act, 1985 under Sections 8(c), 22, 23, 24, 25, 27A, 28, 29, 30, 38 of the NDPS Act, 1985 and under Section 120B of IPC with DRI, Ahmedabad.
2. It is not necessary to record detail facts in view of CAV judgment dated 27.4.2016 rendered in Criminal Misc. Application (For Regular Bail) No.17689 of 2014. However, the applicant herein has preferred as many as 16 temporary/interim bail applications in which various orders are passed and, therefore, on 12.2.2016 following Page 1 of 7 HC-NIC Page 1 of 7 Created On Thu Apr 28 03:01:40 IST 2016 R/CR.MA/2611/2016 ORDER order was passed:
" Heard learned advocates appearing for the parties.
Arguments are over and the matter is kept for orders on 19.2.2016.
On 5.2.2016, registry was directed to place all applications temporary/interim bail filed by the applicant after oral order dated 7.11.2014 was passed in this successive regular bail application namely Criminal Misc. Application (For Regular Bail) No. 17689 of 2014 before this Court and the Assistant Registrar, Criminal Department of the Registry has submitted a note containing a list of 16 such temporary bail applications in which co-
ordinate bench has passed orders either granting temporary bails or permitting the applicant to withdraw such applications. While seeking information about the practice prevailing of filing temporary bail in a regular successive application filed by the accused under Section 439 of Code of Criminal Procedure, 1973, circular dated 25.8.2004 issued by Joint Registrar, High Court of Gujarat is placed on record which reads as under:
"While hearing of the Criminal Misc. Application No. 4817 of 2004, the Larger Bench comprising Hon'ble M/s. Justices Page 2 of 7 HC-NIC Page 2 of 7 Created On Thu Apr 28 03:01:40 IST 2016 R/CR.MA/2611/2016 ORDER R.K.Abichandani, C.K.Buch & D.H. Waghela has been pleased to observe that the practice adopted by the circular dated 8th April, 2004 on the basis of the decisions of the Apex Court in the case of Shahzad Hasan Khan V. Ishtiaq Hasan Khan, reported in AIR 1987 SC 1613 and State of Maharashtra Vs. Captain Buddkikota Subha Rao reported in AIR 1989 SC 2292 are required to be followed and accordingly, the subsequent bail applications under Section 439 of the Code are required to be listed before the same Judge who decided the earlier bail applications. It is observed that in view of the decision in case of Mehboob Dawood Shaikh Vs. State of Maharashtra, reported in 2004 AIR SCW 527, subsequent bail applications for cancellation of bail under Section 437(5) and 439(2) of the Code and for temporary bail need not to be placed before the same Judge and such subsequent bail applications under Section 437(5) and 439(2) of the Code required to be placed before the appropriate Court as per the roster. However, it is clarified that where the earlier application for anticipatory bail filed under Section 438 of the Code is rejected, the similar repeated application Page 3 of 7 HC-NIC Page 3 of 7 Created On Thu Apr 28 03:01:40 IST 2016 R/CR.MA/2611/2016 ORDER under Section 438 of the Code will have to be placed before the same Judge. Therefore, in compliance of the latest decision of the larger Bench of our own High Court, henceforth, all the concerned are directed to list the subsequent bail applications as per the observations made by the Larger Bench as above, without fail.
All the concerned are directed to follow the above instruction scrupulously, failing which it would be viewed seriously."
However, whether observations made by a larger Bench of this Court in Criminal Misc. Application NO. 4817 of 2004 relying on case of Mehboob Dawood Shaikh Vs. State of Maharashtra, reported in 2004 AIR SCW 527 subsequent bail applications for cancellation of bail under Section 437(5) and 439(2) of the Code and for temporary bail need not to be placed before the same Judge and such subsequent applications are required to be placed before the appropriate Court as per the roster will be stricto-sensu apply in case where learned Judge of this Court is in seisin of regular successive bail application which is pending and during pendency of such successive regular bail application, temporary bail is filed by the accused whether to be placed and heard Page 4 of 7 HC-NIC Page 4 of 7 Created On Thu Apr 28 03:01:40 IST 2016 R/CR.MA/2611/2016 ORDER by the same learned Judge or to be placed and heard by the appropriate Court as per the roster.
Learned advocates to address the above issue by next date of hearing."
3. The above issue was addressed by learned advocate appearing for the parties and an attempt was made by learned advocate for the applicant to distinguish nature of temporary and interim bail applications and it is submitted that if the temporary bail applications in pending regular successive bail application is heard by the learned Judge according to circular dated 28.5.2004 issued by the Registrar, High Court of Gujarat which is based on decision of a larger bench of this Court in Criminal Misc. Application No. 4817 of 2004 relying on the case of Mehboob Dawood Shaikh v. State of Maharashtra [2004 AIR SCW 527], it cannot be said that order passed by Judge other than the Judge before whom regular successive bail application is pending is either without jurisdiction or contrary to law.
4. That reference is made to various paragraphs of the decision of larger bench of this Court and decision of the Apex Court in the case of Mehboob Dawood Shaikh (supra) by learned advocate appearing for DRI and learned APP and submitted that it cannot be said that this issue was addressed by larger bench of this Court in specific terms.
5. Having heard learned advocates appearing for the Page 5 of 7 HC-NIC Page 5 of 7 Created On Thu Apr 28 03:01:40 IST 2016 R/CR.MA/2611/2016 ORDER parties and on perusal of the decision rendered by the larger bench of this Court in Criminal Misc. Application No. 4917 of 2004 and decision of the Apex Court in the case of Mehboob Dawood Shaikh (supra) , I am of the view that the issue namely whether observations made by a larger Bench of this Court in Criminal Misc. Application NO. 4817 of 2004 relying on case of Mehboob Dawood Shaikh Vs. State of Maharashtra, reported in 2004 AIR SCW 527 subsequent bail applications for cancellation of bail under Sections 437(5) and 439(2) of the Code and for temporary bail need not to be placed before the same Judge. Further, such subsequent applications are required to be placed before the appropriate Court as per the roster will stricto-sensu apply where, learned Judge of this Court is in seisin of regular successive bail application and during pendency of such successive regular bail application, temporary/interim application is filed by the accused and the circular dated 25.8.2004 issued by Joint Registrar, High Court of Gujarat does not deal with such a situation. Therefore, in my view, it is not clear whether such successive/temporary/interim bail application is to be placed and heard by the same learned Judge or to be placed and heard by the appropriate Court as per the roster or as per specific order passed by Hon'ble the Chief Justice.
6. In my humble view the above issue is even not specifically considered and answered by the larger bench of this Court in Criminal Misc. Application No. 4817 of 2004 and, therefore, the very issue needs to be addressed in Page 6 of 7 HC-NIC Page 6 of 7 Created On Thu Apr 28 03:01:40 IST 2016 R/CR.MA/2611/2016 ORDER proper perspectives. In view of the above, the Registry is directed to place the matter before Hon'ble the Chief Justice for taking appropriate decision in this regard.
7. Order accordingly.
(ANANT S.DAVE, J.) SMITA Page 7 of 7 HC-NIC Page 7 of 7 Created On Thu Apr 28 03:01:40 IST 2016