Bombay High Court
Manika Namdeorao Bhosale And Others vs The State Of Maharashtra on 12 December, 2018
Author: P.R.Bora
Bench: P.R.Bora
{1} 937 BA 1372 OF 2018 & ORS.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
937 BAIL APPLICATION NO.1372 OF 2018
WITH
ACB/108/2018 WITH BA/938/2018
WITH
CRIMINAL APPLICATION NO.3523 OF 2018
IN
BAIL APPLICATION NO.1372 OF 2018
...
MANIKA NAMDEORAO BHOSALE AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA
...
Advocate for Applicants : Shri Mahesh V. Ghatge and
Shri Baliram B. Shinde
APP for Respondent : Shri A.S.Shinde
Advocate for Informant : Shri V.S.Kadam
...
CORAM : P.R.BORA, J.
DATE: 12th December, 2018 PER COURT:-
1. Criminal Application No.3523 of 2018 is not on board. The same is taken on board. The application is filed by the applicant seeking permission to assist the APP in the present matter.
Application is allowed. The applicant is permitted to assist the prosecution.
2. When the present bail application is taken up for hearing, it is brought to my notice by learned APP Shri A.S.Shinde assisted by Shri V.S.Kadam that the present applicants had previously filed applications bearing Bail Application Nos.937 of 2018 and 938 of 2018. It is further submitted that the said applications ::: Uploaded on - 17/12/2018 ::: Downloaded on - 27/12/2018 06:32:26 ::: {2} 937 BA 1372 OF 2018 & ORS.
were heard by this Court (Coram: Sangitrao S. Patil, J.) on 18.09.2018. It is further contended that Bail Application Nos.937 of 2018 and 938 of 2018 were withdrawn by the applicants therein, except the applicant by name Ananda Namdeo Bhosale, with liberty to file application for bail afresh before the Trial Court, if the trial is not concluded within six months from the date of the said order.
3. The learned APP submitted that the period of six months is yet to expire after passing of the order by this Court on 18.09.2018. It is further contended that before expiry of the said period and without approaching the Trial Court, since the present subsequent bail applications are filed, they are not maintainable and cannot be entertained by this Court.
4. Shri M.V.Ghatge, learned Counsel appearing for the applicants has opposed the contentions raised by learned APP. Learned Counsel relying on the Judgment of this Court in the case Laxman Irappa Hatti and another Vs. State of Maharashtra [2004 (2) Bom.C.R. (Cri.) 525, as well as the Judgment of the Hon'ble Apex Court in the case of Prashant Ramachandra Deshpande Vs. Maruti Balaram Haibatti [1995 DGLS(SC) 496) submitted that merely because the earlier applications were ::: Uploaded on - 17/12/2018 ::: Downloaded on - 27/12/2018 06:32:26 ::: {3} 937 BA 1372 OF 2018 & ORS.
withdrawn by the applicants and some liberty was given by the then Court while permitting the applicants to withdraw the said applications, the right of the present applicants to file the subsequent bail application cannot be said to have been taken away. The learned Counsel submitted that in the meantime since some change has occurred in the circumstances and it is subsequently revealed that certain documents, which could have materially affected the previous decision, were not filed in the previous bail application. Therefore, the applicants are entitled to file the subsequent bail application inspite of withdrawal of the earlier application.
5. The learned Counsel submitted that it is the contention of the applicants that the alleged incident, which gave rise for initiating the criminal prosecution against the present applicants, was the outcome of the civil dispute between the parties. The learned Counsel further submitted that the applicants are in a position to point out to the Court that aggression was on the part of the opposite party and was not on the part of the present applicants. It is the contention of the learned Counsel that the applicants have preferred the present subsequent application so that they can bring all those documents to the notice of the Court and make their submissions accordingly. The learned ::: Uploaded on - 17/12/2018 ::: Downloaded on - 27/12/2018 06:32:26 ::: {4} 937 BA 1372 OF 2018 & ORS.
Counsel submitted that when the earlier applications were not heard on merits and this Court has not touched to the merits of the case, there may not be bar for hearing the present applications on their own merits.
6. The learned APP has resisted the submissions so made. It is contended that the reference of all those documents is there in the previous bail applications and also in the charge-sheet filed against the present applicants. It is further contended that nobody had prevented the applicants to raise the said issue even in the earlier applications, however, without raising such issue when the applications were withdrawn by the applicants with liberty, the applicants now cannot be permitted to say that they are entitled to file subsequent bail applications.
7. I have duly considered the submissions advanced by learned Counsel for the applicants and learned APP for the respondent - State.
8. As has been observed by this Court in the case of Laxman Irappa Hatti and another (supra), the law is well settled that the order refusing an application for bail does not necessarily preclude the applicants from filing the subsequent bail ::: Uploaded on - 17/12/2018 ::: Downloaded on - 27/12/2018 06:32:26 ::: {5} 937 BA 1372 OF 2018 & ORS.
application or successive bail application. However, the law is equally well settled that the successive bail applications are ordinarily not to be entertained without any change in the circumstances. Otherwise as has been held by the Hon'ble Apex Court in the case of State of M.P. Vs. Kajad [(2001) 7 Supreme Court Cases 673), it would amount to seek review of the earlier Judgment, which is not permissible under the criminal law.
9. The Hon'ble Apex Court in the case of State of Maharashtra Vs. Captain Buddhikota Subharao (AIR 1989 SC 2292) has observed that "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, which would mean a substantial change having a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. "
10. In another Judgment in the case of Kalyan Chandra Sarakar Vs. Rajesh Ranjan [2005 ALL MR (Cri.) 1030 (S.C.)], the Hon'ble Apex Court observed and held that even though there is room for filing a subsequent bail application in cases where earlier applications were 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 findings become absolute. This is the limited area in which as accused who has been denied bail earlier, can move a subsequent application. " ::: Uploaded on - 17/12/2018 ::: Downloaded on - 27/12/2018 06:32:26 :::
{6} 937 BA 1372 OF 2018 & ORS.
11. In the present matter, it is sought to be contended by the learned Counsel for the applicants that since their first applications have not been decided on merits, the observations as are made in the aforesaid Judgments may not come in their way for filing successive bail applications. The submission so made apparently cannot be accepted for the reason that if the tenor of the order passed on 18.09.2018 by the then Court in earlier bail applications is seen, it is discernible that the matter was heard by the said Court and after its disinclination for granting bail, the leave was sought to withdraw the said applications. In the circumstances, even though it is not expressly mentioned in the said order that the said applications are rejected, it has to be held that had the Court been called upon to decide the said applications on merits, they must have been dismissed by the said Court.
12. It is the contention of the applicants that, when the earlier bail applications were submitted and heard by the Court, some important documents were not filed and hence could not be brought to the notice of the Court. It is the further contention of the applicants that, these documents have material bearing on the subject matter and the applicants believe that, if these documents are brought to the notice of the Court, their chances ::: Uploaded on - 17/12/2018 ::: Downloaded on - 27/12/2018 06:32:26 ::: {7} 937 BA 1372 OF 2018 & ORS.
of getting the bail would increase. According to the learned Counsel, this is the circumstance which permits the applicants to file the successive bail application.
13. The question which falls for my consideration is, if any document or documents, which according to the applicants has material bearing on the subject matter and which may improve chances of the applicants to be released on bail, are sought to be filed on record in the subsequent bail application, whether it can be said to be a change of circumstances so as to entertain the said application ?
14. It is asserted by the learned Counsel for the applicants that, there are at least three such documents, which could not be filed by the applicants in the previous bail applications, which the applicants have annexed with the present application. It is further contention of the learned Counsel that, these documents clearly reveal that, the alleged incident which had given rise for initiating the criminal prosecution against the present applicants was the outcome of civil dispute between the parties. The learned Counsel further submitted that, the applicants are in a position to point out to the Court on the basis of the documents which are filed along with the present applications that ::: Uploaded on - 17/12/2018 ::: Downloaded on - 27/12/2018 06:32:26 ::: {8} 937 BA 1372 OF 2018 & ORS.
aggression was on the part of the opposite party and was not on the part of the present applicants.
15. The submissions so made on behalf of the applicants are, of course, disputed by the learned APP. It is the contention of the learned APP that, though these documents may not have been filed on record, there was reference of all these documents in the charge-sheet and the charge-sheet was very well before the Court while considering the previous bail applications.
16. After having considered the submissions advanced by the learned Counsel appearing for the applicants and the learned APP, it appears to me that, there is no any fix formula or rigid rule for deciding as to which situation can be held to be change in circumstance. Admittedly, the earlier bail applications were heard by Hon'ble Shri Justice Sangitrao S. Patil, who now stands retired. Both the parties are raising rival contentions. The applicants are submitting that the documents, which are filed along with the present application, were not filed and no argument based on such documents was advanced on behalf of the applicants.
17. Though, the learned APP has disputed the aforesaid ::: Uploaded on - 17/12/2018 ::: Downloaded on - 27/12/2018 06:32:26 ::: {9} 937 BA 1372 OF 2018 & ORS.
contentions, the material on record reveals that few documents, which are filed alongwith the present application, were not filed alongwith the previous bail applications. Moreover, if it is the contention of the applicants that the documents now filed on record may be useful for their release on bail, the opportunity needs to be given to the applicants to argue their case on merits. I, therefore, reject the preliminary objection as about the maintainability of the present application and direct the parties to make their submissions on merits.
18. On request of the learned Counsel for the parties, stand over to 18.12.2018.
(P.R.BORA) JUDGE SPT ::: Uploaded on - 17/12/2018 ::: Downloaded on - 27/12/2018 06:32:26 :::