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All the concerned are, therefore, directed to follow the above instructions scrupulously, failing which it would be viewed seriously.
High Court of Gujarat By order, Ahmedabad 380 060 Date : 8th April 2002 (M.G.Gulabani) Joint Registrar"

4. It also appears from the record placed before us that, on 12th March 2004, a Division Bench of this Court, dealing with Criminal Misc. Application No. 2201 of 2004 for temporary bail under Section 389(1) of the Code, which was placed before that Bench in compliance of the said Circular since it had earlier rejected the bail by order dated 13-2-2001, directed that the Registry should obtain order from the Hon'ble the Chief Justice for placing that application before the appropriate Court as per the roster as it was of the opinion that the application should not have been notified before it. The Division Bench relied upon paragraph 13 of the judgement of the Supreme Court in Mehboob Dawood Shaikh v. State of Maharashtra, reported in 2004 AIR SCW 527, while making the said order. The Division Bench observed that the considerations for refusal of regular bail during the pendency and hearing of the appeal would be quite different than those which may apply while considering the questions of the grant of temporary bail. The matter was, therefore, placed before the Hon'ble the Chief Justice by the Registry and the Hon'ble the Chief Justice approved the office note dated 16th March 2004 to the effect that the said Criminal Misc. Application be notified as per the roster and that henceforth, subsequent temporary bail applications under Section 389 and the applications for cancellation of bail under Sections 437(5) / 439(2) of the Code of Criminal Procedure be placed before the appropriate Court as per the roster instead of placing them before the same Bench.

5.7 The learned Single Judge finally observed: "In my opinion, the Apex Court could never have intended causing such hardships to all concerned", and released this application for being placed before the Hon'ble the Chief Justice for appropriate orders.

6. It was contended by the learned counsel for the applicant and the other learned counsel who were allowed to intervene that the stages of the applications under Sections 438 and 439 of the Code were entirely different and therefore, after rejection of an application under Section 438 of the Code, the subsequent application made under Section 439 was not required to be placed before the same Judge even on the ratio of the decisions of the Supreme Court on the basis of which the Circular was issued. It was further argued that even in respect of the applications under Section 439, those made prior to the filing of a charge-sheet stood on a different footing than the applications made after the filing of the charge-sheet. Therefore, when an application is made under Section 439 of the Code, prior to the issuance of the charge-sheet is rejected, and a fresh application is filed after the filing of the charge-sheet, such fresh application cannot be said to be a "successive" or "repeated" application and therefore, it would not be required to be placed before the Judge who had rejected the application for bail made under Section 439 prior to the filing of the charge-sheet. Reliance was placed on the decision of a learned Single Judge of this Court in case of J.S.Bhatt v. State of Gujarat, reported in XXXIII(2) GLR 832 in support of the contention that the application filed after the presentation of the charge-sheet stood entirely on a different footing and cannot be treated as a "successive" bail application. It was also submitted that the applications for temporary bail and cancellation of bail stood on a different footing and need not be placed before the Judge who had earlier refused the bail. As noted above, this aspect was already taken care of by the orders of the Hon'ble the Chief Justice made on 16-3-2004. It was submitted by all the learned counsel that subsequent bail applications filed under Section 439 of the Code after the presentation of the charge-sheet need not be placed before the learned Judge who might have rejected the bail application made by the same person under Section 438 or under Section 439 prior to the filing of the charge-sheet. It was also tried to be contended on behalf of the applicant that the decisions of the Apex Court were based on the practice prevalent in the High Courts of Allahabad and Bombay and no such practice existed in the High Court of Gujarat and therefore, the Circular could not have been issued for adopting similar practice in this High Court.

"But where the cancellation is sought for on grounds different from those which existed at the time of granting bail, the conventional practice of placing the matter before the same learned Judge need not be followed as if it is a statutory requirement."

8.6 The observations made by the Supreme Court in Mehboob's case were not at all in the context of the decisions in Shahzad and Buddhikota cases which were not even cited. We hold that the ratio of the decision of the Supreme Court in Shahzad and Buddhikota cases, is in no way affected by the decision in Mehboob's case and the contrary indication in the release orders of the learned Single Judge in the present application and the Division Bench in Criminal Misc. Application No. 2201 of 2004 dated 12-3-2004, is not at all warranted. The cancellation of bail applications stands on a different footing than the grant of bail applications and a direction has already been issued by the Hon'ble the Chief Justice on 16-3-2004 to notify the applications for cancellation of bail under Sections 437(5) and 439(2) and temporary bail applications before the appropriate Court as per the roster, instead of placing them before the same Bench that decided the bail application of the same accused earlier.

11. The applications under Section 439(2) are now not being placed before the same Bench that granted bail in view of the latter direction of the Hon'ble the Chief Justice issued on 16-3-2004 on the basis of the decision of the Supreme Court in Mehboob Shaikh's case (supra) and the aforesaid Circular stands modified accordingly, as noted above. There is, therefore, no flaw in the practice adopted by the Circular on the basis of the decisions of the Apex Court in Shahzad Khan and Buddhikota (supra), as modified on the basis of the decision of Mehboob Shaikh (supra) in respect of the subsequent applications for cancellation under Section 437(5) and 439(2) and for temporary bail. The question referred to us, therefore, stands answered accordingly.