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CR.MA/9893/2010 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 9893 of 2010
=====================================================
UTTAMKUMAR
SINHA @ UTTAM S/O NANDLAL SINHA - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=====================================================
Appearance :
MR
RAJESH M AGRAWAL, MR YOGESH R AGRAWAL for Applicant, MR VO JOSHI for
Applicant
MR KP RAWAL ADDL.PUBLIC PROSECUTOR for
Respondent
=====================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 08/10/2010
ORAL
ORDER
1. Rule.
Mr.K.P.Rawal, learned Additional Public Prosecutor, waives service of
notice of Rule on behalf of respondent-State of Gujarat.
2. This
application has been filed under Section 439 of the Code of Criminal
Procedure for grant of bail in connection with FIR registered on
05.02.2008 vide C.R.No.I-43/2008, with Jamnagar City `A’ Division
Police Station, for offences punishable under Sections 489B, 489C and
120-B of the Indian Penal Code.
3. The
present is a successive bail application. The earlier application
filed by the applicant, being Criminal Miscellaneous Application
No.4149 of 2009, was permitted to be withdrawn by order dated
08.05.2009, as the Court was not inclined to grant bail.
4. The
allegation against the applicant is that he, along with other
co-accused persons, is involved in the commission of the
above-mentioned offences.
5. Mr.R.M.Agrawal,
learned advocate for the applicant, has submitted that there is no
material against the applicant, who has been arrested on a statement
of one of the co-accused persons who has since been acquitted by the
Trial Court, and who had been enlarged on bail during Trial. It is
further submitted that though the present application is a successive
one, there are changed circumstances which are substantial and vital
in nature, inasmuch as the co-accused Ashok Shiburao, on whose
statement the applicant was arrested, has been acquitted by the Trial
Court, which entitles the applicant to bail. That the applicant has
been arrested on 12.04.2008. The Charge has not been framed and the
Trial will take a sufficiently long time, therefore, there is no
justification for keeping the applicant behind Bars, especially when
there is no evidence against him. That though there are eleven
criminal case regarding the same type of offences against the
applicant in different Courts, but now only a few are pending. By
keeping the applicant in jail, his fundamental right for speedy
justice is being violated, as the Trial is not proceeding
expeditiously. That the fact that the petitioner hails from another
State i.e. Jharkhand cannot be a ground for rejecting the bail
application. In view of the above submissions, it is prayed that the
application may be allowed.
In
support of the above submissions, the learned counsel for the
applicant has placed reliance upon the following decisions:
(1)
Babu Singh and others v. State of U.P. – (1978)1 SCC 579, (2) Giani
Pratap Singh v. State of Rajasthan and Another – (1995)5 SCC
591, (3) Sanjay alias Bablu alias Keja v. State of Gujarat –
2003 SCC (Cri.) 1534 and (4) Prakashbhai Keshrimal Shah v. The State
of Gujarat – Criminal Misc. Application No.960 of 2008
decided on 11.02.2008.
6. The
application has been strongly opposed by Mr.K.P.Rawal, learned
Additional Public Prosecutor. He has submitted that out of the ten
accused persons in the FIR, of which the applicant is one, four have
been convicted, one has been sent to the Juvenile Court, the Trial
against the applicant is pending and three co-accused are absconding.
It is, therefore, canvased by the learned Additional Public
Prosecutor that the acquittal of accused No.6, Ashok Shiburao, would
not constitute a substantial or material change in circumstances so
as to justify the filing of a successive bail application, as there
is sufficient evidence/material on record against the applicant. That
the applicant has been brought before the Trial Court by way of a
Transfer Warrant issued by the Chief Judicial Magistrate, Jamnagar,
from Maharashtra, which explains the delay in his case. The Trial is
proceeding and the Charge is likely to be framed soon. It is
contended by the learned Additional Public Prosecutor that the
applicant is not entitled to get bail as there is sufficient material
on record to show his involvement in the commission of the offences
alleged, as he is one of the main conspirators. That the applicant is
involved in the supply of counterfeit currency all over India and
even across the border which is a very grave and serious offence that
undermines the economic stability of the country. It is emphasized
that if the applicant is granted bail, he is likely to indulge in the
same activities and commit the same offences. There is every
possibility that he may also abscond, therefore, the application for
bail may be rejected. It is further contended that merely because the
applicant has remained in custody since 12.04.2008, this would not
entitle him for grant of bail, in light of the seriousness of the
offence and evidence on record, showing his involvement.
The
learned Additional Public Prosecutor has relied upon the following
judgments in support of his submission that once an application for
bail is rejected, a fresh application cannot be allowed unless there
is a new ground:
(1)
Arvind Shivlal Soni v. State of Gujarat and Anr. – 1997(1) GLR 92
and (2) Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and
Another – (2005)2 SCC 42.
7. Having
heard the learned counsel for the respective parties and having
perused the material on record, including police papers and papers of
the chargesheet which have been made available by the learned
Additional Public Prosecutor, the following aspects emerge for
consideration, and have been duly considered:
(a) The
applicant is involved in offences of a grave and serious nature,
which undermine and destabilise the economic foundation of the
nation.
(b) From
the material on record, it appears that the applicant is involved in
as many as eleven offences of the similar nature, in different parts
of the country. It further appears that the area of operation of the
applicant not only extends to the entire nation, but beyond the
Indian border.
(c) Prima-facie,
from the material on record, the involvement of the applicant in the
commission of the alleged offences appears to be indicated.
(d) The
acquittal of one of the co-accused cannot be considered to be a
substantial change in circumstances so as to entitle the applicant
for grant of bail, as there is no change in the factual or legal
position since the earlier bail application was withdrawn.
(e) The
applicant has been brought on a Transfer Warrant from Maharashtra,
therefore, his Trial is still pending. This, in itself cannot be
considered as a ground for grant of bail, in view of the facts and
circumstances of the case and the role allegedly played by the
applicant, in the commission of the above-mentioned offences.
(f) The
possibility that the applicant may indulge in the same activities if
released on bail, or may even abscond, cannot be ruled out,
especially as he is facing Trial in about eleven cases of a similar
nature, in different parts of the
country.
8. In
State of U.P. Through CBI v. Amarmani Tripathi –
(2005)8 SCC 21,
the Apex Court has enumerated the aspects that are to be considered
in an application for bail, as under:
“The
matters to be considered in an application for bail are (i) whether
there is any prima facie or reasonable ground to believe that the
accused had committed the offence; (ii) nature and gravity of the
charge; (iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on
bail; (v) character, behaviour, means, position and standing of the
accused; (vi) likelihood of the offence being repeated; (vii)
reasonable apprehension of the witnesses being tampered with; and
(viii) danger, of course, of justice being thwarted by grant of
bail. While a vague allegation that the accused may tamper with the
evidence or witnesses may not be a ground to refuse bail, if the
accused is of such character that his mere presence at large would
intimidate the witnesses or if there is material to show that he
will use his liberty to subvert justice or tamper with the evidence,
then bail will be refused.”
(Para
18)
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.”
9. Guided
by the above principles of law enunciated by the Supreme Court, which
are squarely applicable to the present case; and as, prima-facie, the
involvement of the applicant is indicated from the material on
record, in the considered view of this Court, this is not a fit case
for exercise of discretion in favour of the applicant.
10. For
the above-stated reasons, the application deserves to be rejected and
is, accordingly rejected. Rule is discharged.
11. 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.)
(sunil)
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