Gujarat High Court Case Information System
Print
CR.MA/1172720/2008 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 11727 of 2008
==========================================
RANJITSINGH
ALIAS TINO MANUSINGH RATHOD - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
==========================================
Appearance :
MR
JV JAPEE for Applicant(s) : 1,
MR. A.J.DESAI, ADDITIONAL PUBLIC
PROSECUTOR for Respondent(s) :
1,
==========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 01/07/2009
ORAL
ORDER
RULE. Learned
APP Mr. A.J.Desai waives service of notice of rule on behalf of the
Respondent State.
The present
application has been filed by the Applicant accused under Section
439 of Criminal Procedure Code for grant of regular bail.
The Applicant
accused is charged with having committed offence under Sections 395,
397, 412, 414 and 120B of the Indian Penal Code, for which complaint
has been lodged being I-CR No. 148 of 2004 with Anand Town Police
Station.
Learned advocate Mr.
J.V.Japee for the Applicant accused has submitted that though the
present application is a successive bail application, as, earlier
the bail application after the charge sheet was preferred by the
present Applicant accused, which was withdrawn. He further
submitted that the Applicant is in jail for about 1 ½ year
and the other co-accused have been released, for which he referred
to the order. He submitted that one Kantibhai Macwana, who was also
similarly situated like the present Applicant accused and who was
alleged to have been absconding for four years, has been released on
bail, and therefore, on the ground of parity, the present Applicant
accused may also be released on bail.
Learned advocate Mr.
Japee has also submitted that out of three cases, the Applicant
accused was in jail for some time and in two cases he has been
acquitted also. Learned advocate Mr. Japee therefore submitted
that even if the trial is likely to commence, it will take some
time, and therefore, as the Applicant accused is in jail for more
than 1 ½ year, he may be released.
Learned APP Mr.
A.J.Desai, on instructions, submitted that the trial is commend and
the next date is 2nd July 2009, i.e. tomorrow. Learned
APP has also submitted that the present application cannot be
entertained in view of the fact that the Applicant accused was
absconding for more than four years. Learned APP further submitted
that the Applicant accused, if is released, then his presence may
not be secured and it would ultimately affect the trial itself,
which is going on. Learned APP also submitted that admittedly he is
indulged in other offences also, and therefore, looking to his
conduct, the present application may not be allowed.
In view of the rival
submissions, it is required to be considered whether the present
application for bail can be entertained or not.
It is not in dispute
that the Applicant accused is involved in the past in three
offences. Though, it may not be the only circumstance, the fact
remains that he was absconding for about four years coupled with the
fact that the trial has now commenced and the next date is scheduled
on 2.7.2009. It is in these circumstances, considering his conduct,
the apprehension voiced by the leaned APP was justified that, if he
is released, he may jump the bail and it may affect the trial itself
and he may influence the witnesses also.
Another facet of the
argument made by learned advocate Mr. Japee on the ground of parity
is misconceived inasmuch as it is well accepted that the parity
would not be claimed as of right and it is required to be granted
referring to various circumstances particularly in the present case
the conduct of the present Applicant accused. The submission that
the Applicant accused is in jail for 1 ½ year and the trial
may take some time and therefore the Applicant accused may be
released on bail pending the trial, also cannot be accepted in light
of settled position of law as observed by the Hon’ble Apex Court in
case of Kalyan Chandra Sarkar etc. v. Rajesh Ranjan alias Pappu
Yadav and another reported in AIR 2005 SC 921. The
Hon’ble Apex Court, referring to to the similar submissions of the
right of the accused under Article 21 and the delay in trial and
detention of the accused pending trial, has observed:
18. It is trite
law that personal liberty cannot be taken away except in accordance
with the procedure established by law. Personal liberty is a
constitutional guarantee. However, Article 21 which guarantees the
above right also contemplates deprivation of personal liberty by
procedure established by law. Under the criminal laws of this
country, a person accused of offences which are non bailable is
liable to be detained in custody during the pendency of trial unless
he is enlarged on bail in accordance with law. Such detention cannot
be questioned as being violative of Article 21 since the same is
authorised by law. But even persons accused of non bailable offences
are entitled for bail if the Court concerned comes to the conclusion
that the prosecution has failed to establish a prima facie case
against him and/or if the Court is satisfied for reasons to be
recorded that in spite of the existence of prima facie case there is
a need to release such persons on bail where fact situations require
it to do so. In that process a person whose application for
enlargement on bail is once rejected is not precluded from filing a
subsequent application for grant of bail if there is a change in the
fact situation. In such cases if the circumstances then prevailing
requires that such persons to be released on bail, in spite of his
earlier applications being rejected, the Courts can do so.
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 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.
In light of the
aforesaid observations, such a contention is misconceived, as the
Hon’ble Apex Court has clearly observed that the liberty of an
individual is cherished, but it is subject to reasonable restriction
under the criminal law justice system of the Country. Further,
admittedly, the Applicant accused had preferred Criminal Misc.
application No. 6069 of 2008 before this Court which was withdrawn
vide order dated 12.5.2008, and therefore, as the present
application is a successive bail application and there are no change
in the circumstances, it would not be justified to entertain the
present application in light of the observations made by the Hon’ble
Apex Court as above.
Learned advocate Mr.
Japee, after arguing at length has requested for withdrawal of the
application. Therefore, the permission has not been granted, and
accordingly, the present application stands rejected. Rule
discharged.
(Rajesh H. Shukla,J)
Jayanti*
Top