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CR.MA/14202/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 14202 of 2010
=========================================
DINESH
HARIRAM GUPTA - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================
Appearance
:
MR BH SOLANKI for Applicant(s)
: 1,
MR DC SEJPAL, ADDL. PUBLIC PROSECUTOR for Respondent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 27/12/2010
ORAL
ORDER
The
present application has been filed by the applicant-accused for
grant of regular bail under sec. 439 of the Code of Criminal
Procedure, which is a successive bail application after Criminal
Misc. Application No. 11371 of 2010 was withdrawn vide order dated
18.10.2010.
2. The
applicant-accused is charged with having committed offences under
sections 397 and 114 of IPC and sec. 135(1) of the Bombay Police Act
for which FIR, being C.R. No. I-483/2005, has been registered with
Navrangpura Police Station.
3. Learned
advocate Mr. Dagli for the applicant referred to the papers and
submitted that the investigation is over and as the other co-accused
has been released as per the order passed in Criminal Misc.
Application No. 9499 of 2010 by other co-ordinate Bench (Coram: Z.K.
Saiyed, J.) vide order dated 17.8.2010, the present application may
be allowed. He submitted that the role attributed is similar and the
ground on which on earlier occasion the court may not have considered
is that he does not belong to this State. However, he submitted that
father of the applicant is having fair price shops and the applicant
is also having a mobile shop and therefore his presence could be
secured and therefore the present application may be allowed.
4. Learned
APP Mr. Sejpal resisted the application and submitted that after the
incident the present applicant along with others were absconding and
they have been arrested in the year 2007. He submitted that the
amount involved in this offence is about Rs. 46,75,000/- and nothing
has been recovered. He pointedly referred to the papers including
the pointing out panchnama which has been drawn at the instance of
the present applicant and also referred to other statements like T.I.
parade and submitted that it would suggest prima facie involvement of
the applicant accused. He further submitted that his own conduct
would not warrant grant of any discretionary relief. He submitted
that the other co-accused had also filed Criminal Misc. Application
Nos. 11116 of 2010 as well 11151 of 2010 and the same have been
withdrawn which were after the order was passed in case of the other
co-accused, which has been relied upon, i.e., Criminal Misc
Application No. 9499 of 2010. He therefore submitted that he cannot
claim any parity. He also submitted that the applicant is having two
antecedents and therefore the present application may not be
entertained.
5. Having
heard learned advocate Mr. Dagli and learned APP Mr. Sejpal and
having considered the nature of offence, the manner in which it is
alleged to have been committed, the role attributed and also
considering the relevant papers, the present application cannot be
entertained particularly when no material change in the facts and
circumstances is pointed out after the order was passed in Criminal
Misc. Application No. 11371 of 2010 dated 18.10.2010 by this court
which was withdrawn. The submission that at that time the fact that
the applicant is belonging to other State would have been relevant is
misconceived as, after fulfledged argument the matter was withdrawn
and, therefore, the reasons are not stated and it cannot be said that
merely because he belongs to other State the application was not
entertained. In fact, it was not entertained qua the present
applicant as well as other co-accused considering the gravity/nature
of the offence and the prima facie case suggesting their involvement.
6. The
reliance placed on the order of the co-ordinate Bench in Criminal
Misc. Application No. 9499 of 2010 was very much there even when
earlier Criminal Misc. Application No. 11371 of 2010 was not
entertained and it was withdrawn. Therefore, this is also not a
ground which can be said to have been any subsequent development or
change. Therefore, as there is no subsequent material change in the
fact-situation, the present application cannot be entertained as
observed by the Hon’ble Apex Court in a judgment in the case of
Kalyan Chandra Sarkar
etc. v. Rajesh Ranjan alias Pappu Yadav and another,
reported in AIR 2005 SC 921inasmuch even for entertaining the
successive bail application, the court has to consider the
subsequent change in the fact-situation. Otherwise, the earlier
decision would remain binding.
7. Therefore,
as there are no changes in the material fact-situation pointed or any
other relevant aspects which can be said to have taken place, the
present application cannot be entertained and it deserves to be
rejected and accordingly stands rejected. Rule is discharged.
(Rajesh H.
Shukla, J.)
(hn)
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