Bail; Jagubhai Nankubhai Mengad Vs. State of Gujarat [Gujarat High Court, 15-06-2016]

Penal Code, 1860 – Ss. 302, 323, 324, 325, 504 & 114 – Criminal Procedure Code, 1973 –  S. 439 (2) –  Successive Bail Application – When applications of respondent No.2 and of accused No.3 were heard together by this Court and when this Court had not entertained the application of respondent No.2 and dismissed it as withdrawn, judicial discipline required learned Judge not to entertain the successive bail application of respondent No.2 in absence of any changed circumstances enabling the respondent No.2 to prefer successive bail application. Entertaining one of the applications, i.e. of accused No.3, and not entertaining the application of respondent No.2 on the same day by this Court could not be taken as change in circumstances to entertain successive bail application of respondent No.2.

# Cancellation of Bail


IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CORAM: HONOURABLE MR.JUSTICE C.L. SONI

Date : 15/06/2016

CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO. 925 of 2016

JAGUBHAI NANKUBHAI MENGAD (AHIR)….Applicant(s)
Versus
STATE OF GUJARAT & 1….Respondent(s)

Appearance:

MR K S CHANDRANI, ADVOCATE for the Applicant(s) No. 1
MR VIJAY H NANGESH, ADVOCATE for the Respondent(s) No. 2
MS NISHA THAKORE, ADDL PUBLIC PROSECUTOR for Respondent No. 1

ORAL ORDER

1. RULE. Learned Additional Public Prosecutor Ms. Nisha Thakore for respondent No.1 and learned advocate Mr. Nagesh for respondent No.2 waive service of Rule.

2. Present application is filed under Section 439(2) of the Code of Criminal Procedure (‘the Code’) seeking cancellation of bail granted to respondent No.2- accused No.4 by learned Additional Sessions Judge, Rajula vide his order dated 22.12.2015 in connection with the FIR at Annexure-B, being C.R. No.I-14 of 2015, registered with Dungar Police Station, Amreli for the offences punishable under Sections 302, 323, 324, 325, 504 and 114 of the Indian Penal Code.

3. It is alleged in the FIR that on complainant saying to respondent No.2 that there should not be spitting on the premises of temple, respondent No.2 with other accused got angry and started assaulting the complainant and his son. It is stated that out of the accused, accused No.1 Hathi Ala and accused No.3 Sura Kama had axe in their hands and respondent No.2 and accused No.2- Rama Vasa had sticks in their hands and accused No.1 Hathi Ala gave blow of Munghrati (blunt portion) of axe on the head of the complainant, as a result of which, the complainant fell down, at that time, respondent No.2 gave blow with stick on the knee of left leg of the complainant, as a result of which, the complainant started bleeding, at that time, son of the complainant intervened and he was also assaulted by the accused. It is stated that the complainant and his son were taken to hospital and later on, the complainant succumbed to the injuries.

4. As it appears from the facts of the case, after the charge-sheet was filed in connection with the FIR, respondent No.2 preferred an application for regular bail under Section 439 of the Code. It was rejected by learned Additional Session Judge by his order dated 30.9.2015. Respondent No.2 then filed application for regular bail being Criminal Misc. Application No.18847 of 2015 before this Court. Accused No.3- Surabhai Kamabhai Satya had also preferred application for regular bail, being Criminal Misc. Application No.19421 of 2015 before this Court. It is not in dispute that both the applications were taken up together for hearing on the same day by coordinate Bench of this Court. So far as respondent No.2 is concerned, his application was dismissed as withdrawn by order dated 2.12.2015 passed in his application. However, application of accused No.3 came to be allowed and he was ordered to be released on regular bail by order of the even date.

5. It was after a period of about 13 days, respondent No.2 again moved an application for regular bail before learned Additional Sessions Judge. Such application came to be heard and decided by the same learned Additional Session Judge who earlier rejected the application of respondent No.2. Learned Additional Session Judge allowed such successive bail application vide his order dated 22.12.2015 on the basis of the order of bail passed by this Court in the case of accused No.3. The applicant- the complainant therefore, has come with the present application seeking to quash the order made by learned Judge releasing the respondent No.2 on bail.

6. Learned advocate Mr. Chandrani for the applicant submitted that after learned Additional Sessions Judge rejected first bail application of respondent No.2, neither there was change in the circumstances nor a ground of parity was available to the respondent No.2 for filing successive bail application before learned Additional Sessions Judge and therefore, not only successive bail application preferred by respondent No.2 was not maintainable but learned Additional Sessions Judge was also not justified in entertaining such successive bail application. Mr. Chandrani submitted that accused No.3 who was released on bail by the High Court was shown to have held axe in his hand in the FIR and considering the allegations against him, this Court considered his application and released him on bail. Whereas, for respondent No.2, who was shown to have played active role in the matter of assaulting the complainant and his son, since this Court was not inclined to exercise discretion in his favour, he had withdrawn his application and therefore, it was not open for him to file successive bail application before learned Additional Sessions Judge nor even learned Additional Sessions Judge was justified to consider his application and grant him bail by relying on the order of bail granted to accused No.3 by this Court. Mr. Chandrani submitted that even otherwise, no parity could have been claimed by respondent No.2 as respondent No.2 faced altogether different allegations in the FIR. He submitted that learned Judge committed serious error in placing reliance upon the order made by the High Court to accept the ground of parity though the ground of parity was not at all available to respondent No.2.

7. Learned advocate Mr. Nangesh appearing for respondent No.2 submitted that though the respondent No.2 had withdrawn his first bail application from this Court, however since the accused No.3 who was alleged to have held axe in his hand was released on bail by this Court, respondent No.2 became entitled to prefer successive bail application before the Court below relying on the order made by this Court. Mr. Nangesh submitted that the role assigned to present respondent No.2 is only of using stick and giving blow on the left leg of the complainant and therefore, considering the role alleged to have been played by respondent No.2 in comparison to the role alleged against accused No.3 in the FIR, learned Judge has rightly exercised discretion under Section 439 of the Code in favour of the respondent No.2 and such discretion cannot be said to be illegal or perversely exercised by learned Additional Sessions Judge and therefore, this Court may not exercise powers under Section 439(2) of the Code to cancel the bail granted to the respondent No.2. Mr. Nangesh submitted that simply because respondent No.2 had withdrawn the application, that would not prevent him from filing successive bail application when accused No.3 was granted bail by this Court as the applicant was alleged to have used only stick and given only one blow to the complainant on his left leg and not on any vital part of the body. Mr. Nangesh submitted that granting of bail to another accused by this Court after respondent No.2 was permitted to withdraw his application was a change of circumstance in the facts of the case for the respondent No.2 to file successive bail application and therefore, learned Judge committed no error in entertaining the application relying on the order made by this Court and to grant bail to the respondent No.2 comparing the role alleged to have been played by accused No.2 vis-a-vis the role assigned in the FIR to the accused No.3. He, therefore, submitted that considering the allegations made in the FIR and considering the fact that accused No.3 was released on bail by this Court, this Court may not cancel the bail in exercise of powers under Section 439(2) of the Code.

8. Learned Additional Public Prosecutor Ms. Thakore submitted that it was on account of severe blows given by accused No.1 and respondent No.2- accused No.4, the complainant received serious injuries and he succumbed to such injuries. From the papers of charge-sheet, Ms. Thakore pointed out that the postmortem report reflects that multiple injuries were found on the body of the deceased and the deceased died on account of such multiple injuries. She submitted that there is clear involvement of the respondent No.2 in the offences alleged and considering the injuries received by the complainant (deceased), this Court was not inclined to release respondent No.2 on bail even after the charge-sheet was filed and dismissed the application preferred by the respondent No.2 for regular bail as withdrawn by order dated 2.12.2015 and immediately thereafter, within 13 days, in absence of any changed circumstances, on wrong conception of availability of the ground of parity to respondent No.2, learned Judge was not justified in releasing the respondent No.2 on bail.

9. The Court having heard learned advocates for the parties, finds that not only learned Judge rejected the application for regular bail preferred by respondent No.2 after the charge-sheet was filed by order dated 30.9.2015 but this Court also did not entertain the application, being Criminal Misc. Application No.18847 of 2015, preferred by the respondent No.2 for regular bail and dismissed the same by permitting the respondent No.2 to withdraw the application by order dated 2.12.2015. It is required to note that application of the respondent No.2 and application of accused No.3- Surabhai kamabhai Satya were listed on board on the same day. The advocate who represented the respondent No.2 and Shri Surabhai Kamabhai Satya was the same. It is not disputed that both the applications were taken up for hearing together and as stated above, out of these two applications, application of respondent No.2 was not entertained and was dismissed as withdrawn by this Court, whereas application for regular bail of accused No.3 was allowed by order dated 2.12.2015.

10. It needs to be mentioned that within only 13 days, respondent No.2 preferred successive bail application, being Criminal Misc. Application No.214 of 2015 before the Court below. Learned Judge has allowed such successive bail application by relying on the order made by this Court in the case of accused No.3 and also on the ground of parity. Relevant observations made by learned Judge for releasing the respondent No.2 on bail read as under:-

4. Looking to the facts, complaint and police papers along with the order of the Hon’ble High Court passed in Criminal Misc. Application (for regular bail) No.19421 of 2015 dated 02-12- 15 in which the Hon’ble High Court has released the accused Surabhai Kamabhai Satya on the ground that “the applicant/ accused is having an axe in his hand along with the other accused who had also Axe in their hands and the fact that the other co-accused had given Dharia blow on the deceased, prima facie the injuries shown in the postmortem note are not possible by the Axe…”. Hence, the co-accused was released on regular bail. It is an admitted fact that herein the present case, the applicant/ accused was having a stick at the time of incident and therefore, he has come with a case that by blow of such victim could not be died, and therefore, L.A. For the applicant/ accused has submitted that considering the role played by the applicant/ accused compared with the role played by the co-accused who has been released by the Hon’ble High Court, the applicant/ accused can be released on regular bail.

5. In the facts and circumstances of the case and considering the nature of allegations made against the applicant/ accused in the FIR, I am of the opinion that this is a fit case to exercise the discretion and enlarge the applicant/ accused on regular bail bygiving the benefit of law of parity also. ……”

11. The above observations would go to show that learned Judge misdirected himself while considering successive bail application made by respondent No.2. When applications of respondent No.2 and of accused No.3 were heard together by this Court and when this Court had not entertained the application of respondent No.2 and dismissed it as withdrawn, judicial discipline required learned Judge not to entertain the successive bail application of respondent No.2 in absence of any changed circumstances enabling the respondent No.2 to prefer successive bail application. Entertaining one of the applications, i.e. of accused No.3, and not entertaining the application of respondent No.2 on the same day by this Court could not be taken as change in circumstances to entertain successive bail application of respondent No.2.

12. In the case of

# State of M.P. Vs. Kajad, reported in (2001)7 SCC 673

Hon’ble Supreme Court has held and observed in para 8 as under:-

“8. It has further to be noted that the factum of the rejection of his earlier bail application bearing Miscellaneous Case No.2052 of 2000 on 5.6.2000 has not been denied by the respondent. It is true that successive bail applications are permissible under the changed circumstances. But, without the change in the circumstances the second application would be deemed to be seeking review of the earlier judgment which is not permissible under criminal law as has been held by this Court in Hari Singh Mann v. Harbhajan Singh Bajwa and various other judgments.

In the case of

# Kalyan Chandra Sarkar Vs. Rajesh Ranjan Alias Pappu Yadav and Another reported in (2005)2 SCC 42

Hon’ble Supreme Court has held and observed in para 19,20 and 34 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 weight to the grounds which weighed with the former or higher court in rejecting the bail application. Ordinarily, the issues which had been convassed 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 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 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.

34. It is already noticed that the impugned order is pursuant to an application for grant of bail made by the respondent within 11 days of the order made by this Court in second of the appeals referred to hereinabove. It is also an admitted fact that during these 11 days no fresh material had come into existence nor has been pleaded by the respondent in the present application for bail before the High Court. A perusal of the impugned order clearly shows that the High Court proceeded to reconsider the very same two questions namely the existence of a prima facie case and the evidentiary value of retracted confession and by substituting its subjective satisfaction practically overruled the findings of this Court as well as that of the High Court recorded in the earlier orders, without even discussing these findings and as if the case was being argued and considered by the Court for the first time even though the previous orders of this Court as well as that of the High Court were on record. This reconsideration and recording of a new finding was without there being any fresh factual or legal basis.

13. This Court finds that not only the successive application was not maintainable but for releasing the accused No.3 on bail, learned Judge recorded that since respondent No.2 was having stick at the time of incident, comparing the role alleged to have been played by him with accused No.3, who was released by the High Court, respondent No.2 could be released on bail. Such observation of learned Judge would go against the very nature of the allegations made in the FIR inasmuch as accused No.3 who was released by the High Court was just alleged to have held axe, whereas respondent No.2 is alleged to have used the stick for giving severe blow to the deceased and causing serious injuries, resulting into bleeding from left leg of the deceased. This Court finds that learned Judge has also misdirected himself in recording that benefit of law of parity was required to be given to respondent No.2. It is not understood how such law of parity would be applicable in the facts of the case. When role alleged to have been played by respondent No.2 and that of accused No.3, who was released by this Court on bail, were clearly distinguishable, there was no question of applying law of parity.

14. The Court, therefore, finds that learned Judge has adopted perverse approach in passing the order of bail. Resultantly, the order of bail passed by learned Judge is illegal and such illegal order is required to be quashed and the bail of respondent No.2 is required to be cancelled.

15. Learned Additional Public Prosecutor Ms. Thakore has shown the postmortem report wherefrom, it appears that the complainant- deceased suffered multiple injuries which resulted into his death. She has also pointed out that against respondent No.2, one complaint for offences under Sections 325, 324, 504 and 114 of the Indian Penal Code has been pending. Be that as it may, the Court finds that learned Judge for the reasons recorded above, was not justified in entertaining the successive bail application and granting bail to the respondent No.2.

16. In view of above, the application is allowed. Order dated 22.12.2015 passed by learned Additional Sessions Judge, Rajula in Criminal Misc. Application No.214 of 2015 is quashed and the bail granted to respondent No.2 under the said order shall stand cancelled. The respondent No.2 shall be taken into custody forthwith. Rule is made absolute accordingly.

Direct Service is permitted.

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