V.M. Deshpande JUDGMENT
V.M. Deshpande, J.
1. Rule. Rule made returnable forthwith. Heard finally by consent of learned counsel Shri J.M. Gandhi for the applicant, learned counsel Shri D.V. Chauhan for non-applicant No. 2 Sharad Gomekar, and learned Additional Public Prosecutor Shri N.B. Jawade for the State.
2. This is an application under Section 439(2) of the Code of Criminal Procedure.
3. By the present application, the applicant is challenging grant of bail in favour of non-applicant No. 2 Sharad Gomekar vide order dated 20.9.2017 passed by learned Additional Sessions Judge-3 at Nagpur in Misc. Criminal Application No. 1847/2017.
4. Though the challenge is set up to grant of bail by the applicant on the grounds of (i) judicial propriety and (ii) on merits, I feel that this application can be allowed on the first ground itself. Since this Court is granting the prayer of the applicant on that count alone, the Court is not going in detail about the case of non-applicant No. 2 Sharad Gomekar on its own merits or demerits as it is my considered view that merits and demerits of the case of non-applicant No. 2 Sharad Gomekar were already considered by this Court (Coram : P.N. Deshmukh, J.) on 24.1.2017.
5. Following are the facts which give rise to the present application.
6. On 24.10.2014, Gopal s/o. Muneshwar Singh approached to Kanhan Police Station, District Nagpur and lodged his report. The report was disclosing commission of cognizable offence. Therefore, the police station authorities at Kanhan registered the offence vide Crime No. 139/2014 for the offences punishable under Sections 143, 147, 148, 149, 302, and 307 of the Indian Penal Code and under Sections 3, 4, and 25 of the Arms Ac, 1959 and under Section 135 of the Bombay Police Act, 1951.
7. As per the prosecution case, on 23.10.2014, which was a day of 'Diwali', 'Pooja' was kept at the company at his hand. Therefore, at 10:20 in the night, his son Sunny Singh (injured) came along with various articles required for performing the 'Pooja: At that time, Shital Singh (deceased) was present in the house. Sunny Singh (injured) dropped the first informant and, thereafter, went towards the house for bringing Shital Singh (deceased). However, since Priest was not available, he, on the motorcycle of one worker Rajkumar Gondane, went to village Kandri. At 11:00 O'clock in the night, Sunny Singh (injured) made a phone call on the cellphone of the first informant and informed him that near 'Pan-Shop' of one Rampal, Shital was attacked by Sooraj Gomekar and his brother Amar Gomekar by using gun and when he tried to intervene, Sooraj Gomekar, non-applicant No. 2 Sharad Gomekar, and others assaulted on him by means of sticks and swords. He also received a phone call from Sunny Singh by which it was informed that when Sunny along with his other friends were taking Shital to 'Aasha Nursing Home, they were again encircled by the accused persons and again made a second assault on them due to which Sunny received severe head injuries. It was also informed by Sunny to the first informant that he should reach immediately along with the police and he has no hope that Shital will survive. Ultimately, the first informant reached to the 'Aasha Nursing Home' and from there he took Shital and Sunny to 'Life Line Hospital' and they were admitted in the said hospital.
8. During the medical treatment, the doctor declared Shital as dead and when first informant Gopal made enquiries with his surviving son Sunny, it was informed that accused persons, including present non-applicant No. 2 Sharad Gomekar, on old enmity and on account of money transactions, assaulted by means of deadly weapons like gun, swords, and sticks.
9. The accused persons were arrested and it was informed to this Court that as on today two accused persons by name Amar Gomekar and Bhuru are still absconding.
10. The arrested accused persons filed different applications before the Court below, after filing of the charge-sheet.
11. It is stated before me that one accused Taroon Jain is released by learned Judge of the Court below. For deciding the controversy in the present application, his release is not having any impact.
12. Be that as it may, present non-applicant No. 2 Sharad Gomekar and co-accused Chandrakant @ Pintu Suresh Jaiswal filed two different bail applications before the Court below. Their bail applications were considered on merits by learned Judge of the Court below and their bail applications were rejected.
13. Firstly, Chandrakant @ Pintu Suresh Jaiswal approached to this Court and renewed prayer for bail and his application for bail was not considered by this Court and same was dismissed.
14. It appears that this Chandrakant @ Pintu Suresh Jaiswal then again renewed his prayer for bail by filing Criminal Application (BA) No. 650/2016 and this Court (Coram : S.B. Shukre, J.) on 20.10.2016 rejected the application as not maintainable since it was noticed by this Court that said Chandrakant has suppressed filing of the earlier bail application before this Court.
15. In the meanwhile, after rejection of bail application filed on behalf of non-applicant No. 2 Sharad Gomekar, he approached to this Court and prayed that he be released on bail. His application was registered as Criminal Application (BA) No. 370/2016. His case was heard and this Court (Coram : ZA Haq, J.) on 2.5.2016 who passed following order:
"Shri A.A. Naik, learned advocate for the applicants, on instructions, seeks permission to withdraw the application with liberty to move again if the trial does not commence within six months.
The application is disposed of as withdrawn with liberty as prayed for."
16. After the said, another bail application was filed before this Court by non-applicant No. 2 Sharad Gomekar and his bail application was registered as Criminal Application (BA) No. 1039/2016 and this Court (Coram : P.N. Deshmukh, J.) on 24.1.2017 passed the following order:
"After dictating order for sometime, Shri Dable, learned Counsel for applicant, seeks leave to withdraw the criminal application unconditionally.
(emphasis is supplied)
Leave as prayed is granted. The criminal application is disposed of as withdrawn."
17. The events further occur in the nature of filing of an another bail application before this Court by Chandrakant @ Pintu Suresh Jaiswal. His bail application was registered as Criminal Application (BA) No. 427/2017 and this Court (Coram : ZA. Haq, J.) on 20.7.2017 granted bail in favour of Chandrakant @ Pintu Suresh Jaiswal on certain conditions.
18. After Chandrakant @ Pintu Suresh Jaiswal was released on bail, non-applicant No. 2 Sharad Gomekar filed an application before the Sessions Court for grant of bail. His bail application was registered as Misc. Criminal Application No. 1847/2017 and learned Additional Sessions Judge-3 at Nagpur passed order dated 20.9.2017, which is impugned in the present application.
19. As observed in the earlier part of this order, the present application can be decided only on the ground of judicial propriety. It would be useful to refer to observations of learned Judge of the Court below, while granting the bail in favour of non-applicant No. 2 Sharad Gomekar, found in paragraph No. 11 of the impugned order and those are reproduced hereinbelow:
"During the course of argument though much submission was made on behalf of the prosecution that, once first bail application was withdrawn from the Hon'ble High Court unconditional then this Court is barred to take cognizance of this bail application, but it is very shocking and surprising to me. Strictly speaking I do not come across such type of provisions or any authority of Hon'ble Apex Court or High Court. In my view, unless the Hon'ble High Court has rejected the application of bail on merit & then on the same ground the second application is not maintainable but if subsequent events during the enquiry or trial took place then in my opinion the right of accused to move the application on the ground of subsequent event or change in circumstances cannot be denied or curtail".
In my view, the Court below committed error in making above observations and has completely overlooked the settled principles. The Court below has given go-bye to judicial discipline and decided an application which was untenable on the principles of judicial propriety.
20. Learned counsel Shri J.M. Gandhi for the applicant has invited my attention to a very recent authoritative pronouncement of the Honourable Apex Court in the case of State of Maharashtra vs. Avinash, reported at MANU/SC/1149/2017 : 2017 SAR (Criminal) 1068 and relied upon paragraph No. 12 of the said judgment which is re-produced below:
"The MPID Act is intended to secure the interests of small depositors. The respondent initially filed an undertaking before the Special Judge to set out the manner in which he would secure an amount of Rs. 14,26,36,300/-. Besides an amount of Rs. 2 crores which he had deposited, the respondent undertook to deposit an amount of Rs. 1.5 crores every month commencing from 15 February 2016. He was released on bail by the Special Judge on 11 January 2016 by requiring him to deposit an amount of Rs. 1.5 crores each month, commencing from 15 February 2016. The respondent applied for modification of the condition of deposit in Miscellaneous Criminal Application No. 350 of 2016 which was dismissed on 1 July 2016. The High Court was then moved in an application (Criminal Application No. 178 of 2016) under Section 482 of the Cr.P.C., with a specific prayer for defreezing his bank accounts. This prayer, together with the other reliefs (including that for quashing the FIR) was not pressed and the application was disposed of as withdrawn on 29 June 2016 by the Division Bench. In this background, the filing of another application before the learned single Judge on 1 July 2016 for quashing the FIR and for de-freezing the bank accounts constituted a manifest abuse of process. The learned Single Judge was evidently not apprised of the fact that the earlier application seeking virtually the same relief had not been pressed before the division bench and had been withdrawn. Consequently, we find merit in the submission urged on behalf of the State of Maharashtra. The learned single Judge ought not to have entertained the application under Section 482 in respect of the same relief which had been given up earlier before the Division Bench of the High Court on 29 June 2016."
21. After the charge-sheet was filed, initially, non-applicant No. 2 Sharad Gomekar filed an application for bail under Section 439 of the Code of Criminal Procedure before the Trial Court. The said application was rejected. After rejection of the bail application by the Trial Court, after scanning the charge-sheet, co-accused Chandrakant @ Pintu Suresh Jaiswal approached to this Court. His application for bail was rejected by this Court as withdrawn. He moved secondly before this Court by filing Criminal Application (BA) No. 650/2016 and this Court (Coram : S.B. Shukre, J.) on 20.10.2016 found that Chandrakant's application for bail was not maintainable as period of 6 months was not over. Therefore, his application for bail was rejected as not maintainable.
22. Present non-applicant No. 2 Sharad Gomekar, after rejection of his bail application, which was considered on merits by the Trial Court after considering the prosecution case as it was emerging against him in the charge-sheet, approached to this Court by filing Criminal Application (BA) No. 370/2016 and this Court (Coram : Z.A. Haq, J.) on 2.5.2016 allowed non-applicant No. 2 Sharad Gomekar to withdraw the application with liberty to move again if the trial does not commence within six months. The withdrawal was obvious since this Court was not inclined to grant the bail. Had the Court was inclined to grant the bail, there was no occasion for non-applicant No. 2 Sharad Gomekar to withdraw the said application.
23. Non-applicant No. 2 Sharad Gomekar did not move before the Trial Court with a renewed prayer for bail since the Trial was not over within six months. Instead, he chose a path of filing an application before this Court to test his case on merits again by this Court and filed Criminal Application (BA) No. 1039/2016 and this Court (Coram : P.N. Deshmukh, J.) on 24.1.2017, after considering entire case of the prosecution vis--vis non-applicant No. 2 Sharad Gomekar, was not inclined to grant the bail even on second occasion. Learned counsel for non-applicant No. 2 withdrew the said criminal application unconditionally.
24. Then again, Chandrakant @ Pintu Suresh Jaiswal approached to this Court and, as observed in the preceding paragraphs, on 20.7.2017 his bail application was considered favourably by this Court (Coram : Z.A. Haq, J.) and he was released on bail on certain conditions.
25. According to learned counsel Shri D.V. Chauhan for non-applicant No. 2 Sharad Gomekar, this was a change in circumstance which is termed as a subsequent event and filed the application before the Trial Court.
26. In my view, learned Judge of the Court below ought to have dismissed the application filed on behalf of non-applicant No. 2 Sharad Gomekar as not maintainable.
27. The case of non-applicant No. 2 Sharad Gomekar was considered on its own merits independently by this Court and, therefore, if according to non-applicant No. 2 Sharad Gomekar there occurs any subsequent event, instead of approaching to the Trial Court, he ought to have filed an application before this Court and at that time learned Judge, who granted permission on 24.1.2017 to withdraw the application unconditionally, was present at Nagpur Bench and the same Judge could have decided the application by considering the subsequent events vis--vis present non-applicant No. 2 Sharad Gomekar.
28. Time and again, the Honourable Apex Court as well as this Court has ruled that in order to instill the confidence in the minds of litigants, once application for bail is decided by a Judge, successive application for bail, if it is filed, has to be decided by the very same Judge if the Honourable Judge is available.
29. It was not the case of non-applicant No. 2 Sharad Gomekar before the Trial Court that the Honourable Judge, who granted the permission to withdraw the application unconditionally, was not available at Nagpur Bench.
30. In that view of the matter, learned Judge of the Court below, when was knowing the fact that the application for bail was considered by the High Court on its own merits and the Honourable Judge is still at Nagpur Bench, ought not to have made observations in paragraph No. 11 of the impugned order and ought to have rejected the application as not maintainable, on the settled principles of judicial discipline and propriety.
31. Further, after rejection of the bail application of Chandrakant @ Pintu Suresh Jaiswal, he never went before the Trial Court and his subsequent applications were before this Court alone.
32. Similarly, when the first bail application of non-applicant No. 2 Sharad Gomekar was withdrawn and when the Trial was not commenced, non-applicant No. 2 Sharad Gomekar did not approach to the Court below but filed an application before this Court. It does not lie in the mouth of non-applicant No. 2 Sharad Gomekar at this stage that it was not a subsequent event. Non-commencement of the Trial would have been a subsequent event. Therefore, that time he could have approached to the Trial Court. However, he chose a path to this Court by filing Criminal Application (BA) No. 1039/2016 which was considered on its own merits and when was about to dismiss the same application withdrew the same.
33. The Honourable Apex Court in the case of State of Maharashtra vs. Avinash cited supra has considered the fact that when the Division Bench of this Court was not with non-applicant therein and when that application under Section 482 was not pressed, it was not open for non-applicant therein to approach before the Single Judge of this Court and obtain order which was assailed before the Honourable Apex Court by the State which is set aside.
34. Conspectus of all the chronology events, as described in detail hereinabove, I am of the view that when the application itself was not maintainable before the Trial Court, there was no occasion for learned Judge of the Court below to consider the case of non-applicant No. 2 Sharad Gomekar on merits and ought not to have granted the bail in favour of non-applicant No. 2 Sharad Gomekar.
35. In that view of the matter, this Court passes the following order:
ORDER
(a) The criminal application filed under Section 439(2) of the Code of Criminal Procedure is allowed.
(b) Bail granted in favour of non-applicant No. 2 Sharad Gomekar on 20.9.2017 by learned Additional Sessions Judge-3 at Nagpur in Misc. Criminal Application No. 1847/2017 is hereby revoked.
(c) Non-applicant No. 2 Sharad Gomekar to surrender his Bail Bonds immediately, failing which learned Additional Sessions Judge-3 at Nagpur is directed to issue Non-Bailable Warrant immediately against non-applicant No. 2 Sharad Gomekar.
36. At this stage, learned counsel Shri D.V. Chauhan for non-applicant No. 2 Sharad Gomekar submits that order passed by this Court today shall be kept in abeyance for a period of four weeks from today. However, looking to the fact that non-applicant No. 2 Sharad Gomekar was not at all entitled for the bail and he obtained the bail on misconceived and untenable application, his prayer is rejected.
37. The criminal application is allowed and disposed of. Rule is made absolute.
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