The present successive bail application is preferred by the applicant for seeking regular bail in respect of his arrest in connection with the FIR being I.C.R. No.175/2009 registered with Anjar Police Station for the offences punishable under Sections 394, 395, 397 and 120B of the Indian Penal Code, Section 25(1)(a) of the Arms Act and Section 135 of the Bombay Police Act.
In fact, it is required to be noted that the First Information Report was lodged on 29.08.2009 i.e. the date on which the alleged offence has taken place. The present applicant was arrested along with other accused on 03.09.2009 and Muddamal was recovered there from, which is not disputed. The applicant had approached the Court i.e. Session Court for bail on 22.02.2010, which came to be rejected by the Sessions Court vide order dated 26.02.2010. The applicant thereafter approached this Court by filing Criminal Misc. Application No.6246/2010, which came to be rejected by this Court (Coram: S.R. Brahmbhatt, J.) on merit on 22.06.2010. It is pertinent to note at this stage that the earlier application was rejected on merits and after the police report was filed, the charge is also framed. The applicant of this application once again moved the Session Court for regular bail which came to be rejected vide order dated 19.01.2011. Thereafter the applicant has once again moved this court by preferring Criminal Misc. Application No. 1622 of 2011 and same was rejected by this Court (Coram: S.R. Brahmbhatt, J.) vide order dated 15.02.2011. The applicant along with another applicants accused has approached the Apex Court by preferring S.L.P., being Special Leave to Appeal (Cri.) No. 5252/2011, which is produced at page no.56, Annexure-I, which came to be withdrawn on 22.07.2011 with a liberty to move the High Court for appropriate relief. The Court framed the charge thereafter.
Learned advocate appearing for the applicant contended that the co-accused have been released on bail and though he is not pressing into service this ground for maintaining successive bail application, but it may weigh with the Court, as now only the present applicant along with one more applicant who is before the Court in another application have remained in custody in respect of the offence in question.
Learned advocate for the applicant has elaborately discussed and laid emphasis upon the role attributed to the applicant and submitted that the applicant be deserved to be enlarged on bail, as the applicant has spent more than two and half years in custody awaiting trial.
Learned advocate for the applicant has relied upon the following decisions of the Apex Court in support of his submission:
(i) Chandraswami Vs. Central Bureau of Investigation, reported in AIR 1997 SC 2575;
(ii) Babu Singh Vs. State of Uttar Pradesh reported in AIR 1978 SC 527;
(iii) Prahlad Singh Bhati Vs. State (Nct of Delhi) reported in AIR 2001 SC 1444;
contended that the Courts are not debarred from considering the successive bail application on the grounds mentioned thereunder. The consideration for bail application need to be viewed, in view of the provision of Section 437 of the Cr.P.C and the offence alleged, if , is not falling one of the exception embedded in Section 437 (1) and (2), then originally Court should exercise its discretion in favour of the applicant-accused for enlarging on bail. Of course when enlarging on bail, the relevant considerations in respect of the likelihood of tampering with evidence etc. may certainly weigh with the Court.
Learned advocate for the applicant submitted that the framing of charge by the Court is of-course a development, but he is not pleading the same to be a changed circumstance so as to entitle the accused-applicant to maintain the bail application.
Learned APP has submitted that release of the other accused on bail would in itself not be a ground for bringing successive bail application. The recovery of Muddamal could not be brushed aside lightly nor could it be brushed aside that the Court has in fact on earlier occasion rejected the bail application on merits and the Apex Court has not interfered with the same order in any manner.
Learned APP has further submitted that the release of co-accused in subsequent applications by this Court also would not be of any avail to the present applicant, as looking to those orders one can contend that nothing is recorded which could help the present applicant for getting regular bail from this Court.
This Court has heard learned advocate for the applicant as well as learned APP and considered the facts and circumstances of the case. It is required to be noted that the learned advocate for the applicant has fairly not urged that parity is sought on account of enlargement of other co-accused on bail. However, the orders are produced on record, therefore, Court has perused those orders which are admittedly made subsequent to the orders passed by this Court rejecting the bail application of the present applicant. In those orders, as could be seen from the face of it, no material consideration could be found which could be said to be helping the present applicant in any manner for exercising discretion in his favour in enlarging him on bail.
As against this, this Court's earlier orders rejecting the bail application on merit was based upon the fact that the complainant has identified the accused in T.I parade and this Court is unable to accept the submission of learned advocate for the applicant that T.I. parade is a very loose piece of evidence. The strength or infirmity of the evidence is not a subject matter to be gone into while considering the bail application under Section 439 read with Section 437 and, therefore, this Court need not delve much upon this. Suffice it to say that recovery of Muddamal factum that all the accused are yet not arrested, few accused are still absconding and the Muddamal was recovered from the presence of the accused.
This Court is unable to accept the submission of learned advocate for the applicant for exercising discretion in favour of the applicant in enlarging on bail. The application being bereft of merits, deserves rejection and is accordingly rejected.
(S.R.BRAHMBHATT, J.) Pankaj Top