JUDGMENT
Badar Durrez Ahmed, J.
1. On 24.02.2005, this Court had passed a detailed order which reads as under:
“The learned counsel for the petitioner submitted that this is the third bail application which is being moved on behalf of the petitioner. The first bail application was rejected by an order dated 27.4.2004 of this court and the second bail application was rejected on 30.6.2004 While rejecting the first bail application, this court had recorded that the petitioner and his father had allegedly taken away jewellery worth Rs.44 lakh from the complainant against approval vouchers and that there is a tap recorded conversation between the complainant and the petitioner wherein the petitioner has admitted the deal. It is also recorded that the petitioner is involved in 4-5 cases of a similar nature and the witnesses are yet to be examined in this case.
It is in this context that it was decided that no ground was made out for grant of bail at this stage and, accordingly, the application was rejected. However, it was directed that the trial be concluded expeditiously preferably within a period of six months from the date of charge. It is informed that the charge was framed in May 2004 Accordingly, the learned counsel for the petitioner submits that the period of six months expired in October/November 2004, yet the petitioner is in custody. He further submitted that when he moved the second bail application, which was dismissed on 30.6.2004 itself, the same grounds were mentioned for rejection of the bail application i.e., that the petitioner was involved in other similar cases, the witnesses are yet to be examined and the serious nature of offence.
The learned counsel for the petitioner pointed out that the case of the prosecution is that the jewellery worth Rs. 44 lakhs were entrusted to the petitioner on 08.11.2004 at a particular premises being 2719, Bank Street, Karol Bagh, New Delhi and this is so stated in the FIR itself. On the basis of the statement of the complainant itself, the FIR was registered. He stated that this is contradicted by the document at page 30 which is an advertisement issued in Sandhya Times of 16.11.2002, a reading on which clearly indicates that the shop at 2719, Bank Street, Karol Bagh, New Delhi-5 was to be opened from the next day i.e. from 17.11.2002. He further pointed to the document at page 33 of the paper book which is a news item which appeared in the Hindustan of 11.10.2003 wherein the complainant is stated to have said in that interview that the second showroom at Bank Street, Karol Bagh had been opened in November, 2003. The learned counsel for the petitioner submitted that these aspects of the matter were not considered while rejecting the earlier bail applications mentioned above.
According to him, since these points were not considered by this court at the time of rejection of the bail applications, the decision of the Supreme Court in the case of Kalyan Chandra Sarkar etc v. Rajesh Ranjan 2005 AIR SCW 536 would not come in the way. The decision of the Supreme Court was pointed out and, in particular, paragraphs 19 and 20 thereof were referred to which read 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 co-ordinate 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 eight 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 re-agitated on the same grounds, as the same it 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, is binding on the subordinate foray 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 the guaranty conferred on a person under Article 21 of the constitution of India, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by courts earlier including the Apex Court of the country”
From a reading of the above, the learned counsel for the petitioner submitted that it is not as if subsequent bail applications are barred. However, 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 and ordinarily, the issues which had been canvassed earlier would not be permitted to be re-agitated on the same ground. He submits that this is not a case of re-agitation of issues which had been considered and ejected earlier. He further pointed out that after the rejection of the bail, by virtue of the orders dated 27.04.2004 and 30.6.2004, the complainant has been examined and in fact a substantial portion of the cross-examination has also been done. Further cross-examination is fixed on 19.03.2005.
The learned counsel for the State appearing in this matter relied upon the aforesaid decision of the Supreme Court to submit that successive bail applications should not be encouraged when the same have been dismissed on merits earlier by the same court.
He further submitted that, in any event, the entire trial would be concluded within three months and further submitted that in any event the cross-examination of the complainant is yet to be concluded and at this stage it would not appropriate to release the petitioner on bail.
In this view of the matter, the learned counsel for the petitioner submitted that instead of disposing of this application today itself, the matter be placed for consideration after the examination of the complainant.
List on 24.03.2005.”
2. Thereafter the case has been adjourned on the ground that the cross-examination of the complainant could not be carried out. Several dates were taken and today also this Court is informed that the same was not completed. There is no delay on the part of the defense as indicated by the several orders placed on record. The learned counsel for the petitioner points out the petitioner has already been in custody for almost two years and almost three months have passed since the order of 24.02.2005. The petitioner cannot, therefore, be continued in custody in these circumstances. The learned counsel for the State was also heard. In view of the foregoing circumstances, the petitioner is directed to be released on bail on furnishing a personal bond in the sum of Rs.25,000/- with one surety of the like amount to the satisfaction of the concerned court.
3. It is submitted by all the parties that the trial should be expedited. Accordingly, a direction is given to the Trial Court that the trial be expedited and the same be concluded preferably within six months. Neither the prosecution nor the defense shall take any adjournment in the matter.
A copy of the order be sent to the Trial Court.
dusty.