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(PER : HONOURABLE MR.JUSTICE A.J.DESAI)

1. This Special Bench has been constituted as per the order of Hon'ble the Chief Justice, pursuant to an oral order dated 27/04/2016 passed by learned Single Judge (Coram:

Hon'ble Mr.Justice Anant S. Dave) observing as follows:

"5.   Having   heard   learned   advocates  appearing for the 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  stricto­sensu  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  HC-NIC Page 2 of 11 Created On Sat Apr 08 00:42:50 IST 2017 R/CR.MA/2611/2016 JUDGMENT 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."

5. Mr.Mitesh Amin, learned Public Prosecutor appearing for the respondent-State of Gujarat would submit that when a successive bail application is under consideration by "A" Judge, who had an occasion to deal with the case prior to completion of investigation or subsequent to filing of the charge-sheet, would be the best judge to decide whether the accused before the Court can be released even on temporary/ interim bail or not? He would submit that the Court, who had rejected the application of an accused in past, would be in HC-NIC Page 5 of 11 Created On Sat Apr 08 00:42:50 IST 2017 R/CR.MA/2611/2016 JUDGMENT position to decide whether the applicant is able to establish any change in circumstances to release an accused even on temporary/ interim bail. He would submit that while dealing with a successive bail application, the larger bench of this Court in the case of Babubhai Bachubhai Bhabhor (Supra), by relying upon the decision rendered by Hon'ble Apex Court, has specifically held that when successive bail application either u/s.439 or u/s.438 of the Code, is filed by the same accused, such applications shall be placed for hearing before the Judge, who had earlier rejected the application. Accordingly, High Court has issued a Circular on August 25, 2004. He therefore, would submit that this Court may further clarify that if an application for interim bail is filed by the accused in a successive bail application, the same shall be listed before the Judge, who is in-charge of successive bail application.

9. If the prayers are perused, the applicant had requested the Court to release him on interim bail i.e. till the successive bail application is heard and finally decided. In our views, there is a difference between interim bail and temporary bail. Therefore, when an applicant makes a prayer to release him for interim bail i.e. till the successive bail application is decided, the concerned Judge has to deal with the case on merits. Essentially it is in the nature of interim relief pending consideration of prayer for regular bail. If an application is filed for interim bail, which would not be for a specific period, the same would require detailed scrutiny of evidence, therefore, in our views, it should be heard by the Judge, who is in-charge of the successive bail application. Even procedurally, such application for interim bail would be filed 'In' the main application for regular bail and therefore will always tag along with such proceedings.

10. However, when an accused, whose successive bail application is pending before the High Court, files an application for releasing him on bail for a limited period on various types of reasons, the Court has to look into the reasons for the prayers made by the applicant for his temporary release. There would be number of reasons for HC-NIC Page 9 of 11 Created On Sat Apr 08 00:42:50 IST 2017 R/CR.MA/2611/2016 JUDGMENT asking temporary bail such as marriage in the family, death of relatives, etc. When an under trial prisoner comes forward with a prayer to release him from the judicial custody for a particular reason for a limited period, the considerations before the Court would be different. When an application is filed for temporary bail, the matter is not required to be argued on merits for grant of regular bail. The Court, before whom such application for temporary bail is placed for hearing, would examine the jail record of accused, his behaviour in the jail, whether he is released on temporary bail in past and his conduct during the temporary release period, police report, etc. Therefore, when the Court finds that the cause put forward by the accused is genuine, such application would be granted by the Court for a limited period on appropriate terms and conditions. The criteria for considering an application for temporary bail therefore would be different than the application for interim bail, which is required to be decided on merits after examining the evidence. Therefore, we answer the reference as under: