1. Heard Mr. Dave, learned Advocate for the applicant and Mr. Jani, learned APP for the respondent State.
2. This successive bail application seeking regular bail under Section 439 of the Code of Criminal Procedure has been preferred by the applicant in connection with the offence under Sections 307, 467, 468, 471, 120(B), 201 and 114 of Indian Penal Code and under Sections 25(1)(a) and 27 of Arms Act registered vide Crime Register No.I-80 of 2011 before the Varachha Police Station.
3. Mr.
Dave, learned Advocate for the applicant submitted that while it is true that the applicant herein had earlier preferred application seeking regular bail being Criminal Misc. Application No.11242 of 2011, and that the said application was withdrawn by the applicant, the applicant has now preferred present successive application on ground of change of circumstances. In support of his submissions that there has been change in circumstances, Mr. Dave relied on two orders passed in respect of other two co-accused persons in the same offence. He submitted that by virtue of the said two orders two co-accused of same offence have been enlarged on bail after the previous application filed by present applicant (being Criminal Misc. Application No.11242 of 2011) was withdrawn by the applicant. The other ground urged in support of the application is that the petitioner is in custody since 30th March 2011. He submitted that both the factual aspects constitute change in circumstance and that therefore present successive application filed after charge-sheet is maintainable. Except the said contention any other contention has not been raised. The learned counsel for the applicant has relied on the decisions in case of Ravindra Saxena v. State of Rajasthan, 2010(1)G.L.H. 382 and in case of Sanjay Chandra v. CBI, 2011(13) Scale 107 in support of his submission.
4. The application has been opposed by Mr. Jani, learned APP. He has submitted that the application had, after arguing the application on substantive grounds and on merits, withdrawn the previous application being Criminal Misc. Application No.11242 of 2011.
5. He also submitted that the applicant had, on or around 21st June 2011, preferred Criminal Misc. Application No.8571 of 2011 before the charge-sheet was filed and the said application was withdrawn on 24th June 2011. Subsequently, the charge-sheet came to be filed and after the charge-sheet was filed the present applicant had, on or around 4th August 2011 preferred Criminal Misc. Application No.11242 of 2011 seeking bail and after substantially arguing the application on merits, the applicant had withdrawn the same on 22nd September 2011.
6. Mr.
Jani, learned APP also submitted that even at that stage i.e. when the previous application being Criminal Misc. Application No.11242 of 2011 was withdrawn on 22nd September 2011, some of the co-accused persons were already enlarged on bail and that therefore the said contention was also raised while prosecuting the previous Criminal Misc. Application No.11242 of 2011. He also submitted that all contentions which have been raised in support of present application were urged at the time when the previous application was preferred and that therefore the contention that now there is change in circumstance is not sustainable. He submitted that after the previous application was withdrawn there has not occurred any change in circumstances except that two more accused persons have been enlarged on bail after the order permitting withdrawal of previous application was passed and that therefore present application does not deserve to be entertained.
7. As mentioned at the outset, this successive application is taken out by the applicant who has preferred present application seeking regular bail in connection with offence punishable under Sections 307 and 114 of IPC and Sections 25(1)(a) and 27 of the Arms Act.
7.1. Before the charge-sheet was filed in connection with the alleged offence in question, the applicant had preferred Criminal Misc. Application No.8571 of 2011. The said application was filed on or around 21.06.2011 and was withdrawn by the applicant on 24.06.2011.
7.2. Subsequently when the charge-sheet was filed, the applicant thereafter preferred another application being Criminal Misc. Application No.11242 of 2011 on the ground that there was change in circumstances since charge-sheet was filed.
7.3. The said application was preferred also on the ground that some of the co-accused persons were enlarged on bail under order dated 12.05.2011 passed in Criminal Misc. Application No.6121 of 2011 and order dated 15.06.2011 in Criminal Misc. Application No.7575 of 2011.
7.4. After substantially arguing the said previous application being Criminal Misc. Application No.11242 of 2011 on all available grounds including the ground that there was change in circumstances as after filing of charge-sheet co-accused were released.
7.5. The said previous application was withdrawn by the applicant on 22.09.2011.
7.6. Now, within period of about 2 months, i.e. on or around 24.11.2011, the applicant has filed present successive application merely on the ground that after the previous application was withdrawn two other co-accused persons have been enlarged on bail under orders dated 13.10.2011 and 11.11.2011 passed in Criminal Misc. Application No. 14492 of 2011 and Criminal Misc. Application No.15499 of 2011 respectively.
7.7. The contention that co-accused persons have been released was raised and urged at the time of the previous application as well and at that time the orders on which reliance was placed were the orders dated 12.05.2011 and 15.06.2011.
7.8. When the said ground is already taken into account, the same ground would now not be available to the applicant merely because two other co-accused persons have been subsequently enlarged on bail, particularly when the role alleged and attributed to the applicant herein is different than the role allegedly played by the applicant and which has been attributed and alleged against the co-accused persons who are enlarged on bail.
7.9. So far as the contention that the applicant is in custody since 26.03.2011, it is necessary to note that the previous application was preferred on 04.08.2011 and after arguing it on merits it was withdrawn on 22.09.2011 and that therefore within span of two months after the previous application was withdrawn successive application on such ground, is neither justified not tenable.
7.10.In absence of any substantive change in circumstances, successive application would amount to request for reviewing previous order, which is not permissible in law.
8. As mentioned above, the role attributed to and alleged against present applicant is different from the role attributed to and alleged against the accused persons who are enlarged on bail. In present case the Trial Court has observed in the order that the complainant apprehended attack and hence he had already submitted an application about the threats which were being made to him on telephone. The complainant had also informed that some persons had conducted recce at, and around, his residence. The learned Trial Court has also noticed that the motorcycle used in the alleged offence was also a stolen vehicle, which, after the attack and the firing at the applicant, was abandoned. The learned Trial Court has also recorded that the complainant has identified the applicant.
9. The alleged offence is punishable under Section 307 of IPC and Sections 25(1)(a) and 27 of Arms Act. Thus, the offences are of serious nature.
10. For maintaining a successive bail application what is necessary, as observed by the Apex Court, is "substantive change" and not mere "cosmetic change" or "peripheral change" in the erstwhile circumstances and that the change ought to be such which would have "impact on the previous decision." In the decision in the case of State of Madhya Pradesh v. Kajad, 2001 (7) SC 673, the Apex Court has observed that, "8............successive bail applications are permissible under the changed circumstances. But without the change in the circumstances the second application would be deemed to be seeking review of the earlier judgment which is not permissible under Criminal Law..........."
11. The Apex Court has further explained the concept of change in circumstances in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav & Anr, 2005 (3) G.L.H. 601, wherein the Hon'ble Apex Court has observed and held that, "19.
.........Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been 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 finding has become obsolete. This is the limited area in which the accused, who has been denied bail earlier, can move subsequent application........"
12. In the case of Bharatsingh @ Pappu Tribhovan Singh Rajput v. State of Gujarat, 2002 (2) GHJ 305, this Court has observed, in para 8 and para 21 of the said judgment that:
"8. .....The next contention which was argued before the learned Judge was that other co-accused of the case have been enlarged on bail by the Gujarat High Court in Criminal Misc. Application No.929 of 2002, therefore, the present applicant - accused should also be released on bail. The said contention was rejected by holding that the previous bail applications of the applicant accused were rejected by the Court, therefore, it would not be a ground to release them on bail."
21. ....In my considered opinion merely because another co-accused of this case has been enlarged on bail by another learned Single Judge of this Court would not be a ground to release the present accused on bail."
13. While dealing with the instances wherein previous application/s is/are withdrawn, this Court has observed in the decision in the case of State of Gujarat v. Ashish B. Gandhi that:
"8. ....Once the earlier application of the respondent accused was not pressed and the same was withdrawn, it amounts to an order of dismissal and in absence of fresh ground or change in circumstances the accused should not have been released on bail by the learned Judge................... Because once the earlier bail application was withdrawn it has to be presumed that all possible contentions must have been raised before the Court and Court was not inclined to accept the same and release the accused on bail and, therefore, only the bail application was not pressed by the Advocate for the accused at that time......."
14. In present case, as mentioned above, the contention that co-accused have been released, was urged in light of the orders dated 12.05.2011 and 15.06.2011 and that therefore merely because subsequently another two accused persons are released, in facts of present case, the said event would not amount to change in circumstances, particularly when the role allegedly played by and attributed to present applicant is different.
15. Having regard to the facts of present case and the alleged factual background, the judgment by the Apex Court in case of Sanjay Chandra (supra) and Ravindra Saxena (supra) would not be applicable. In present case, the alleged offence is punishable under Section 307 of IPC and Sections 25(1)(a) and 27 of the Arms Act. Further more, as mentioned above, the alleged factual background which is said to have led to the alleged offence is also materially different e.g. in present case the animosity is related to and the disputes arise on account of cable network. Thus, in light of the factual background also the facts of present case stand on different footing.
16. Having regard to the facts and circumstances of present case the ground on which present application is preferred would not constitute change in circumstances and passage of 2 months after the withdrawal of previous application also does not justify the applicant's contention to the effect that he is in custody since very long time and therefore this application may be entertained and granted. Therefore, I am not inclined to entertain present successive application within two months after the previous application was withdrawn. The application, therefore, fails and is rejected.
(K.M.THAKER, J.) jani Top