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CR.MA/11996/2010 16/ 16 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 11996 of 2010
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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H
N CHAVDA - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=============================================
Appearance :
MR
BM MANGUKIYA for Applicant(s) : 1,MS BELA A PRAJAPATI for
Applicant(s) : 1,
MR LR PUJARI ADDL. PUBLIC PROSECUTOR for
Respondent(s) : 1,
=============================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 08/12/2010
ORAL
ORDER
1. The
applicant apprehending his arrest in connection with FIR lodged with
Gujarat University Police Station, Ahmedabad City as C.R.
No.I-79/2008 for the offences punishable under Section 419, 414, 466,
468, 471, 474, 120-B of Indian Penal Code, has filed this application
under Section 438 of the Code of Criminal Procedure, 1973.
2. At
the outset, this is the second application under Section 438 of the
Code of Criminal Procedure, 1973 before this Court in view of
rejection of Criminal Misc. Application No.7772 of 2010 by this Court
(Coram: Hon’ble Mr. Justice Z.K. Saiyed). The applicant is a
Government servant and is an officer in the education department and
at relevant point of time he was posted as Secretary to the Gujarat
Secondary and Higher Secondary Education Board (for short “the
Board”) established under the Gujarat Secondary and Higher
Secondary Education Act, 1972. The Board undertakes Secondary and
Higher Secondary Certificate Examinations every year as per the
schedule fixed.
3. Initially,
the FIR came to be lodged at the Gujarat University Police Station,
Ahmedabad City, on 14.3.2008 for the offences punishable under
Sections 419 and 114 of IPC and as per the above FIR, students one
Master Harsh Pravinbhai Kotak and one Miss Komal Sanjaybhai Patel
appearing in Standard 12 examination Science stream were not able to
write their papers and requested for assistance of a writer and
accordingly students were permitted to have an assistance of one
Mr.Hriday Prashantbhai Archarya studying in Standard 11 in science
stream in Swastik Shishu Vihar Secondary School, Sardar Patel
Stadium, Ahmedabad and Miss Komal S. Patel who claimed to have
fractured her right hand was provided one Mr. Parth Mukeshbhai Pandya
also studying in the same standard and in the same school. While, on
14th March, 2008, on checking by a squad instead of Mr.
Hriday Prashantbhai Archarya, Dharmik Ambalal Patel, a writer of
Master Harsh Pravinbhai Kotak and in case of Miss Komal Patel, one
Mr. Kevin Paragbhai Desai instead of Mr. Parth Mukeshbhai Pandya
were writing papers. Thus, writer students provided to assist and
write the examination of Master Harsh Kothak and Miss Komal Patel,
were not assisting or writing the papers but some other students were
found on the day when checking squad inspected the examination hall.
It appears that upon preliminary investigation, I.O. submitted a
report on 21.3.2008 and requested to add offences punishable under
sections 464, 468, 471, 474 and 120-B of IPC. Later on, after
arresting the students another report dated 16.9.2008 was submitted
for deleting sections 464, 468, 471, 474 and 120-B of the IPC.
Subsequently, in view of inconsistency of medical reports submitted
by both students and certificates issued by the concerned Orthopedic
Surgeon, once again police officer requested that Sections 464, 468,
471, 474 and 120-B be added and however, the investigation was
transferred to the crime branch for further investigation and after
collection of evidence, recording statements of about 11 persons, it
was found that there was conspiracy to introduce dummy writers. As
per the report submitted on 10.3.2010, police officer of Crime
Branch, Ahmedabad, requested to add the offences punishable under
Sections 466, 468 and 471 of IPC. Thus, on 10th March,
2010, offences were on the record punishable under Section 466, 468,
471 and 120-B of IPC. That, in the anticipatory bail application
which was preferred and dismissed on 5.8.2010 (Coram: Hon’ble Mr.
Justice Z.K. Saiyed) being Criminal Misc. Application No.7772 of
2010, all contentions available on facts were taken up including
reliance placed in the case of State of Gujarat vs. Deepak
Jaswantlal Sheth [1998 (3) GLR 2240] and after considering
material on record in para 6 and 7, the learned Single Judge has
observed as under:
“6. I
have considered the rival submissions made by the learned advocates
appearing for the parties and perused the papers produced on record
and visitor register. From the statements of the witnesses, it is
prima-facie established by the prosecution that FIR is not
encyclopedia and the question of alibi cannot be considered during
the hearing of bail application. From the documents produced on
record, it appears that the present applicant is involved in this
offence.
7. It
is true that once the conspiracy to commit any illegal act is proved,
the act of one conspirator becomes the act of another. I have also
found from the papers that there was a meeting of mind to commit the
offence. Conspiracy can be inferred even from the circumstances
giving rise to exclusive or irresistible inference on an agreement
between two or more persons to commit the offence. I have also found
from the papers that from the conduct of the present applicant and
others, it is an admitted fact that the prosecution has proved
prima-facie that there was a conspiracy. In view of the above, I am
of the opinion that there is some substance in the submission of
learned APP Mr. Trivedi that present applicant accused is an
influential personality and he can be tempered with the evidence if
anticipatory bail is granted to him. I have also gone through the
decision cited by Mr. Mangukia learned advocate appearing for the
applicant. In the said decision, this Court has observed that the
plea of alibi cannot be looked into by Court at the time of
consideration of the question of bail. Considering the facts and
circumstances of the case and the papers produced on record, it
appears that the prosecution has prima-facie established the case
against the present applicant-accused.
4. Mr.
B.M.Mangukiya, learned counsel for the applicant submits that, in
view of the decision of the Apex Court in the case of Ravindra
Saxena v. State of Rajasthan [(2010) 1 SCC 684], wherein it is
held that anticipatory bail can be granted at any time so long as the
applicant has not been arrested, anticipatory bail cannot be denied
merely because allegations of cheating and forgery have been made.
It is further submitted that there is no bar for this Court to
exercise powers under Section 438 of the Code even if on earlier
occasion the request of anticipatory bail is rejected. So far as
the proposition of law laid down as above and contended, this Court
is in full agreement and, therefore, this case is considered on
merit.
4.1. According
to Mr. B.M. Mangukiya, learned counsel for the applicant, the
applicant who was serving as Secretary of the Board is falsely
implicated and there are no allegations in the FIR lodged on
14.3.2008 and it had only mentioned about incident of dummy writers
and certain other irregularities which took place in the examination
hall. It is further submitted that except the visit of the applicant
on 12.3.2008 on the day of the incident on 14.3.2009 the applicant
was nowhere present in the examination hall and time and again the
applicant has presented himself before the investigating officer,
assisted and co-operated and, therefore, the applicant being a
Government servant available for investigation be granted
anticipatory bail.
4.2. Learned
counsel further emphasized that all other co-accused have been
enlarged either under Section 439 or under Section 438 of the Code
and on the ground of parity also the applicant deserves equal
treatment at the hand of this Court and this aspect may also be borne
in mind while exercising powers under Section 438 of the code and
benefit be extended to the applicant while granting anticipatory
bail. It is also submitted that there is no necessity or any
requirement of custodial interrogation of the applicant since the
investigating authority had failed to collect any material even prima
facie connecting the applicant with the crime and at the most some
statements which have been made about role of the applicant are of
accused or persons who have grudge against the applicant to involve
the applicant in the crime. It is next contended that none of the
ingredients of the offence registered against the applicant is
attracted qua offences under Sections 419, 466, 467, 471, 474 of the
IPC and learned counsel has taken this Court to the definition and
language of the above sections and submitted that considering the
above, by no stretch of imagination it can be said that the applicant
has committed any crime. Learned counsel has also referred to the
order dated 12.5.2010 passed in Criminal Misc. Application NO.4743 of
2010; the order dated 17.9.2010 passed in Criminal Misc. Application
No.1050 of 2010 by learned Single Judge of this Court and other such
orders and contended that after considering the record prima facie
Co-ordinate Bench of this Court was satisfied and powers have been
exercised in favour of the co-accused and they were enlarged on bail
by imposing suitable conditions. It is also submitted that in view
of the law laid down by the Apex Court in the case of Mohd.
Ibrahim and Ors. v. State of Bihar and Anr. [(2009) 8 SCC 751],
State of Gujarat vs. Deepak Jaswantlal Sheth [1998 (3) GLR 2240],
Bharat Chaudhary & Anr. vs. State of Bihar and Anr. [(2003) 8 SCC
77], this Court may be pleased
to bear in mind the principles governing grant of anticipatory bail
namely, gravity of offence, prima facie ingredients, status and
reputation of the persons seeking bail, undue harassment that may
cause, the custodial interrogation etc. and the applicant be enlarged
on bail .
4.3. The
learned counsel has also vehemently contended that the hue and cry
created by the media need not influence the court and justice be
done to the applicant and if the record pertaining to the visit of
the applicant on 12th
March, 2008 and entries made in the register book of the various
examination centre are seen, it would clear the issue that the
allegations levelled against the applicant are baseless. It is also
submitted that the complaint was filed in March, 2008 and after a
period of 2 ½ years of investigation the applicant has neither
tried to influence the investigation nor in any manner tried to
tamper any kind of material and basic allegations remained against
the parents of the students, students and dummy writers and at the
most the tutor and doctors who had issued certificates, while the
applicant had not played any role in commission of the crime,
therefore by imposing suitable conditions, the applicant may be
enlarged on bail.
4.4. Lastly,
it is submitted that the applicant has fundamental right under
Article 21 of the Constitution of India and his freedom and liberty
may not be curtailed at the behest of shaky investigation which is
based on no material. Once the applicant is arrested, it may attach
social stigma and also lead to departmental proceedings and,
therefore, the applicant be considered for discretionary relief under
Section 438 of the Code.
5. Mr.
L.R. Pujari, learned APP, for the respondent-State submits that
ordinarily this second application for anticipatory bail need not be
entertained by this Court exercising powers under Section 438 of the
Code since it was rejected on merit by assigning reasons vide order
dated 5.8.2010 and there is no change of fact or law and enlarging
other accused on regular bail cannot have any bearing on the present
case, when the officer of the rank of Class-I performing duties as a
Secretary of the Board and also responsible to conduct free and fair
examination himself is involved in committing irregularities as per
the offence registered under Sections 419, 414, 466, 468, 471, 474,
120-B of Indian Penal Code. According to learned APP, all the above
offfences have severe consequences and allegations are supported by
the materials collected during investigation and about seven to eight
witnesses have in no uncertain terms stated presence of the applicant
on the day of alleged irregularities and three persons have so stated
that the applicant had introduced one Bhagwatsinh Rawat a tutor who
was responsible for dictating answers of questions to writers of the
students namely Master Harsh Kotak and Miss Komal Patel. It is
further submitted that all these above offences are to be read and
considered along with Section 120-B of the IPC and there being prior
meeting of mind and conspiracy to execute the plan so hatched by all
accused together ultimately made a false claim before the Board about
deformities or disability to write the examination and requested that
assistance of writers by getting medical certificates of such
disabilities and ultimately it was found on record that none
of the students who sought for assistance of writer had any kind of
deformity and writers were aided and assisted by the present
applicant as a Secretary of the Board, who was found present on the
day when the examination for standard 12 was conducted and helped in
committing crime as above. It is further submitted that the
investigation is yet not complete and the authority has to find out
various other materials, viz. badges given to a concern persons for
entering into examination hall and mobile telephones made on the day
to various persons besides entry made by the applicant in the
Register book of the school also to be confirmed by securing presence
of the applicant. Not only that but the applicant has evaded his
arrest and procedure is followed of issuance of warrant under Section
70 of the Code and lastly the learned Metropolitan Magistrate, Court
No.11 has issued summons under Section 82 of the Code and the
Division Bench of this Court headed by Hon’ble the Chief Justice has
passed various orders with regard to nature and method of
investigation from time to time and periodical reports are also
submitted accordingly. It is further submitted that powers under
Section 438 of the Code is to be exercised only if this Court thinks
fit that such power is warranted and there cannot be any straight
jacket formula for exercising the powers under Section 438 of the
Code.
6. Having
heard learned counsels for the parties, perusal of the record,
statements of various persons and witnesses shown by learned APP by
producing the file on record reveal that the applicant, a responsible
officer and in-charge of free and fair examination of Secondary and
Higher Secondary examination, is prima facie involved in the offences
so registered. It is not a simple case of connivance but an active
and overt part is taken as per the reading of the statements would
reveal that the applicant has introduced a tutor known to the
students to answer the questions of science papers.
6.1. Recently,
the Apex Court in the case of Siddharam Satlingappa Mhetre
v. State of Maharashtra and Ors.
decided on 2nd
December, 2010 in Criminal Appeal No.2271 of 2010 has referred to
earlier decision of the Apex Court including the decision of
Constitution Bench in Shri Gurbaksh Singh Sibbia & Ors.
vs. State of Punjab
[(1980) 2 SCC 565] and in para
119, 121 and 122 held as under:
“119. This
Court in the Sibbia’s case (supra) laid down the following principles
with regard to anticipatory bail:
a] Section
438(1) is to be interpreted in light of Article 21 of the
Constitution of India.
b] Filing
of FIR is not a condition precedent to exercise of power under
section 438.
c] Order
under section 438 would not affect the right of police to conduct
investigation.
d] Conditions
mentioned in section 437 cannot be read into section 438.
e] Although
the power to release on anticipatory bail can be described as of an
“extraordinary” character this would “not justify
the conclusion that the power must be exercised in exceptional cases
only”. Powers are discretionary to be exercised in light of
the circumstances of each case.
f] Initial
order can be passed without notice to the Public Prosecutor.
Thereafter, notice must be issued forthwith and question ought to be
re- examined after hearing. Such ad interim order must confirm to
requirements of the section and suitable conditions should be
imposed on the applicant.
121.
No inflexible guidelines or straitjacket formula can be provided for
grant or refusal of anticipatory bail. We are clearly of the view
that no attempt should be made to provide rigid and inflexible
guidelines in this respect because all circumstances and situations
of future cannot be clearly visualized for the grant or refusal of
anticipatory bai. In consonance with the legislative intention the
grant or refusal of anticipatory bail should necessarily depend on
facts and circumstances of each case. As aptly observed in the
Constitution Bench decision in Sibbia’s case (supra) that the High
Court or the Court of Sessions to exercise their jurisdiction under
section 438 of the Code by a wise and careful use of their discretion
which by their long training and experience they are ideally suited
to do. In any event, this is the legislative mandate which we are
bound to respect and honour.
122. The
following factors and parameters can be taken into consideration
while dealing with the anticipatory bail:
i. The
nature and gravity of the accusation and the exact role of the
accused must be properly comprehended before arrest is made;
ii. The
antecedents of the applicant including the fact as to whether the
accused has previously undergone imprisonment on conviction by a
Court in respect of any cognizable offence;
iii. The
possibility of the applicant to flee from justice;
iv. The
possibility of the accused’s likelihood to repeat similar or the
other offences;
v. Where
the accusations have been made only with the object of injuring or
humiliating the applicant by arresting him or her.
vi. Impact
of grant of anticipatory bail particularly in cases of large
magnitude affecting a very large number of people;
vii. The
courts must evaluate the entire available material against the
accused very carefully. The court must also clearly comprehend the
exact role of the accused in the case. The cases in which and 149
of the Indian Penal Code, the court should consider with even
greater care and caution because over implication in the cases is a
matter of common knowledge and concern;
viii. While
considering the prayer for grant of anticipatory bail, a balance has
to be struck between two factors namely, no prejudice should be
caused to the free, fair and full investigation and there should be
prevention of harassment, humiliation and unjustified detention of
the accused;
ix. The
court to consider reasonable apprehension of tampering of the
witnesses or apprehension of threat to the complainant;
x. Frivolity
in prosecution should always be considered and it is only the element
of genuineness that shall have to be considered in the matter of
grant of bail and in the event of there being some doubt as to the
genuineness of the prosecution, in the normal course of events, the
accused is entitled to an order of bail”.
Thereafter,
the Apex Court in paras 133 and 134 held as under:
“133.
In our considered view, the Constitution Bench in Sibbia’s case
(supra) has comprehensively dealt with almost all aspects of the
concept of anticipatory bail under section 438 Cr.P.C. A number of
judgments have been referred to by the learned counsel for the
parties consisting of Benches of smaller strength where the courts
have observed that the anticipatory bail should be of limited
duration only and ordinarily on expiry of that duration or
standard duration, the court granting the anticipatory
bail should leave it to the regular court to deal with
69 the matter. This
view is clearly contrary to the view taken by the Constitution Bench
in Sibbia’s case (supra). In the preceding paragraphs, it is
clearly spelt out that no limitation has been envisaged by the
Legislature under section 438 Cr.P.C. The Constitution Bench has
aptly observed that “we see no valid reason for rewriting
section 438 with a view, not to expanding the scope and ambit of the
discretion conferred on the High Court or the Court of Session but,
for the purpose of limiting it”.
134.
In view of the clear declaration of law laid down by the
Constitution Bench in Sibbia’s case (supra), it would not be proper
to limit the life of anticipatory bail. When the court observed that
the anticipatory bail is for limited duration and thereafter the
accused should apply to the regular court for bail, that means the
life of section 438 Cr.P.C. would come to an end after that limited
duration. This limitation has not been envisaged by the legislature.
The Constitution Bench in Sibbia’s case (supra) clearly observed
that it is not necessary to re-write section 438 Cr.P.C. Therefore,
in view of the clear declaration of the law by the Constitution
Bench, the life of the order under section 438 Cr.P.C. granting bail
cannot be curtailed.”
The Apex Court
also considered earlier decisions of the various Benchs and referred
to those decisions in paras 135 and 136, which reads as under:-
“135.
The ratio of the judgment of the Constitution Bench in Sibbia’s
case (supra) perhaps was not brought to the notice of their
Lordships who had decided the cases of Salauddin Abdulsamad Shaikh
v. State of Maharashtra, K. L. Verma v. State and Another, Adri
Dharan Das v. State of West Bengal and Sunita Devi v. State of Bihar
and Another (supra).
136.
In Naresh Kumar Yadav v. Ravindra Kumar (2008) 1 SCC 632,
a two-Judge Bench of this Court observed “the power exercisable
under section 438 Cr.P.C. is somewhat extraordinary in character and
it should be exercised only in exceptional cases. This approach is
contrary to the legislative intention and the Constitution Bench’s
decision in Sibbia’s case (supra).”
The
Apex Court in paras 137 and 138 reiterated as under:-
“137.
We deem it appropriate to reiterate and assert that discretion vested
in the court in all matters should be exercised with care and
circumspection depending upon the facts and circumstances justifying
its exercise. Similarly, the discretion vested with the court under
section 438 Cr.P.C. should also be exercised with caution and
prudence. It is unnecessary to travel beyond it and subject to the
wide power
and discretion conferred by the legislature to a rigorous code
of self-imposed limitations.
138.
The judgments and orders mentioned in paras 135 and 136 are
clearly contrary to the law declared by the
Constitution Bench of this Court in Sibbia’s case (supra). These
judgments and orders are also contrary to the legislative intention.
The Court would not be justified in re-writing section 438 Cr.P.C.”
The
Apex Court also examined issue of per incuriam and finally in paras
149 and 150 reiterated as under:-
“149.
The analysis of English and Indian Law clearly leads to the
irresistible conclusion that not only the judgment of a larger
strength is binding on a judgment of smaller strength but the
judgment of a co-equal strength is also binding on a Bench of judges
of co-equal strength. In the instant case, judgments mentioned
in paragraphs 135 and 136 are by two or three judges of this court.
These judgments have clearly ignored a Constitution Bench judgment of
this court in Sibbia’s case (supra) which has comprehensively dealt
with all the facets of anticipatory bail enumerated under section 438
of Cr.P.C.. Consequently, judgments mentioned in paragraphs
135 and 136 of this judgment are per incuriam.
150.
In case there is no judgment of a Constitution Bench or larger Bench
of binding nature and if the court doubts the correctness of the
judgments by two or three judges, then the
proper course would be to
request Hon’ble the Chief Justice to refer the matter to a larger
Bench of appropriate strength.”
7. Keeping
the above broad aspects in mind what is necessary for this Court is
to see that whether facts of this case are such which would lead this
Court to think it fit to exercise powers under Section 438 of the
Code. As stated earlier initially there is involvement of the
applicant while introducing the tutor one Bhagwatsinh Rawat to write
the examination while answering the questions; secondly, as found by
my predecessor Judge (Coram: Hon’ble Mr. Justice Z.K.Saiyed) that
prima facie material is available about prior meeting of minds and
all accused have entered into a conspiracy to see that students
namely, Master Harsh Kotak and Miss Komal Patel successfully make
attempt and write the examination though there were no injuries,
deformities or disabilities for seeking assistance of the writers,
medical certificates were obtained; thirdly, certificates issued by
the Orthopedic Surgeon had not mentioned correct deformities even if
there was any and such certificates, prima facie appeared to have
been issued to help the students to seek assistances of the writers,
fourthly, writer students were provided from one school i.e. Swatik
Shishu Vihar Secondary School; fifthly, managing
trustee/administrator of the Swastik Shishu Vihar Secondary School is
yet not arrested. Uptil now investigation agency has arrested
parents of the students, tutor and the Doctor which reveal that there
is a prima facie case and statements of the informant Atul Nareshbahi
Shah and Kalpana Shankarlal Patel and other persons and report of Mr.
P. Paneervel, high ranking officer also reveal presence of the
applicant on the day of incident.
8. In
the above circumstances, when further material is yet to be obtained,
it cannot be said that custodial interrogation of the applicant is
not necessary. So far as ground of parity, in view the order dated
12.5.2010 passed in Criminal Misc. Application No.4743 of 2010, is
concerned, admittedly, after police officer of Crime Branch added
Sections 466, 467, 471 and 120-B of the IPC on 10.3.2010, factually
noting is to the extent that offences were punishable under Sections
419 and 114 are registered for which punishment is prescribed for a
period of three years.
9. Be
that as it may be, the fact remains that the offences have been
registered not only under Sections 419 and 114 but also 466, 471, 474
and 120-B. So far as the order dated 17.9.2010 passed in Criminal
Misc. Application No.10501/2010 is concerned, the argument of the
learned counsel was that on two occasions, offences under Sections
466, 468 and 471 were subsequently withdrawn and even if those
sections were read as they were then also no ingredients of forgery
would be attracted and by relying on decision in Mohd. Ibrahim &
Ors. V. State of Bihar & Anr. (supra) and the fact that other
co-accused were enlarged on bail, the learned Judge also granted
bail.
9.1. The
applicant has up till now successfully avoided the arrest and as a
last recourse action under Sections 70 and 82 of the Code is
initiated and being a high ranking officer is likely to influence the
investigation.
10. Considering
the above aspects and law laid down by the Apex Court, prima facie:-
(a) the
applicant, the custodian and in-charge officer for free and fair
examination for Higher Secondary Stream is alleged to have indulged
into irregularities and illegally by polluting stream of education
system.
(b) the
exact role of the accused applicant of introducing a tutor known to
the students appearing in examination is defined.
(c) that
number of items are to be recovered including the badges and visit
books in which entries have been made by the applicant.
(d) that
up till now, the applicant has avoided the arrest and, therefore, he
is likely to flee course of justice and also easily can influence the
witnesses and may also temper with record and above apprehension
cannot be ruled out in view of issuance of warrant under Sections 70
and 82 of the Code.
(e) besides,
the case is also required to be viewed in light of Section 120-B of
IPC.
11. So
far as in the case of Moh. Ibrahim and Ors.
(supra) is concerned, it was a case under Section 482 of the Code
where essentially the dispute had arisen which was of a civil nature
about preparation of false documents and what could be the
ingredients of Sections 415, 420, 463 and 467 and the Apex Court had
quashed the complaint in question. However, the rational and logic
and what is held by the Apex court cannot be applied straightaway to
the application under Section 438 of the Code which has a distinct
character of its own and, therefore, on the aspect of parity, the
applicant cannot be extended any benefit on the above ground also.
12. Considering
the material on record and in view of the fact that according to this
Court there is no change either on fact or any law coupled with
whatever I have observed earlier, this second application for
anticipatory bail is dismissed. Rule is discharged.
[ANANT
S. DAVE, J.]
//smita//
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