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CR.MA/9631/2010 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 9631 of
2010
=========================================================
SUSHANT
RAMKRISHNA PRASAD - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
MAHENDRA K PATEL for
Applicant(s) : 1,
MR. K.P. RAWAL, LEARNED ADDITIONAL PUBLIC
PROSECUTOR for Respondent(s) :
1,
=========================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 17/09/2010
ORAL
ORDER
1. Rule.
Mr. K.P. Rawal, learned Additional Public Prosecutor waives service
of notice of Rule on behalf of the State.
2. This
application has been filed under Section-439 of the Code of Criminal
Procedure, 1973 for grant of bail in connection with offences
punishable under Sections 363, 366, 376 and 114 of the Indian Penal
Code, registered as F.I.R. being C.R. No.I-431/2008 at Odhav Police
Station, on 26.09.2008.
3. Admittedly,
the present application is a successive bail application. Earlier,
the applicant had filed Criminal Misc. Application No.5126/2009 after
the filing of the Charge-sheet, which was permitted to be withdrawn
by order dated 02.05.2009, as the Court was not inclined to grant
bail.
4. The
allegation against the applicant is that he is involved in the
commission of the above-mentioned offences and that the prosecutrix
was allegedly abducted and kidnapped from the lawful guardianship of
her father and taken to Kolkata, and this is how the alleged offences
were committed.
5. Mr.
Mahendra K. Patel, learned advocate for the applicant has submitted
that the applicant is innocent and has been falsely implicated. The
prosecutrix has voluntarily gone with the applicant and no offence,
as such, is made out against him. The applicant is a young man of 21
years and the sole bread earner of his family, therefore, the prayers
made in the application may be granted.
6. On
the other hand, Mr. K.P. Rawal, learned Additional Public Prosecutor
has strongly opposed the grant of bail to the applicant, on the
ground that, at the relevant point of time, the prosecutrix was aged
only 13 years and 02 months, therefore, there is no question of
consent, as she was admittedly below the age of consent as per law.
It is further submitted by the learned Additional Public Prosecutor
that there is sufficient material on record to indicates that,
prima-facie, the applicant is involved in the commission of the
above-mentioned offences. Moreover, the prosecutrix has been
recovered from Kolkata where she had been taken by the applicant.
7. Having
heard the learned counsel for the respective parties and having
perused the material on record, it cannot be lost sight of that the
present is a successive bail application. As per law laid down in
Kalyan Chandra Sarkar Vs. Rajesh Ranjan Alias Pappu Yadav and
Another, (2005)2 SCC 42, there has to be a change of
circumstances in order to maintain a successive bail application and
admittedly, in the present case, no new subsequent developments have
taken place after the earlier bail application was permitted to be
withdrawn, on 02.05.2009. In Kalyan Chandra Sarkar Vs. Rajesh
Ranjan Alias Pappu Yadav and Another (Supra), the Supreme
Court has held as under:-
19. The
principles of res judicata and such analogous principles although are
not applicable in a criminal proceeding, still the courts are bound
by the doctrine of judicial discipline having regard to the
hierarchical system prevailing in our country.
The findings of a higher court or a coordinate Bench must receive
serious consideration
at the hands of the court entertaining a bail application at a later
stage when the same had been rejected earlier. In such an event, the
courts must give due weight to the grounds which weighed with the
former or higher court in rejecting the bail application. Ordinarily,
the issues which had been canvassed earlier would not be permitted to
be reagitated on the same grounds, as the same would lead to a
speculation and uncertainty in the administration of justice and may
lead to forum hunting.
20. The
decisions given by a superior forum, undoubtedly, are binding on the
subordinate fora on the same issue even in bail matters unless of
course, there is a material change in the fact situation calling for
a different view being taken. 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 an accused who has been
denied bail earlier, can move a subsequent application. Therefore,
we are not in agreement with the argument of learned counsel for
the accused that in view of the guarantee conferred on a person
under Article 21 of the Constitution, it is open to the aggrieved
person to make successive bail applications even on a ground already
rejected by the courts earlier, including the Apex Court of the
country.
Moreover,
in Jamiruddin Ansari Vs.
Central Bureau of Investigation and Another, (2009)6 SCC 316,
the same principle has been reiterated in paragraph-17 of the said
judgment.
8. From
a perusal of the material on record, it is evident that the age of
the prosecutrix, at the relevant point of time, was only 13 years and
02 months. The record indicates that the prosecutrix was taken to
Kolkata by the applicant from where she was recovered and brought
back and handed over to the custody of her lawful guardian. From the
record, prima facie, the involvement of the applicant in the
commission of the alleged offences appears to be borne out.
9. For
the afore-mentioned reasons, and as no new or changed circumstances
exist after withdrawal of the earlier bail application, this Court
does not consider the present to be a fit case for exercise of
discretion in favour of the applicant.
10. The
application, therefore, deserves to be rejected. It is accordingly,
rejected. Rule is discharged.
It
is made clear that the Court has considered the matter only from the
perspective of bail and no observation made in this order may be
taken to be on the merits of the case. The Trial Court may proceed,
in accordance with law, without being influenced by any observations
made in this order.
(Smt. Abhilasha Kumari, J.)
Safir*
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