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Sukar Naran Bakhia Vs. R.P. Shah and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1985)1GLR127
AppellantSukar Naran Bakhia
RespondentR.P. Shah and anr.
Excerpt:
.....should be enlarged on bail, the court may do so unhampered by the previous decisions rejecting the bail applications. it is the well established principle that every court has to take its own decision on the bail application before it. mehta has argued that the present petitioner had failed to appear before the court in this case on several occasions when he was on bail. mehta by stating that the failure of the accused to appear in this case on certain dates is not of material importance because, according to him, those were only formal dates and the presence of the accused was not necessary. the principles which are to be taken into consideration while considering the bail application are well known and well established any yet each application for bail has to be considered on its own..........new facts or circumstances which may have come into existence after the disposal of the previous bail application. on those very facts and circumstances the petitioner can come again to the court and seek bail. according to mr. advani, if the accused person may have failed to persuade one judge, on that very facts and circumstances of the case he may succeed in convincing another judge on the very facts and circumstances and if the court is convinced that this is a fit case where the accused should be enlarged on bail, the court may do so unhampered by the previous decisions rejecting the bail applications. the contention of mr. advani must be upheld. it is the well established principle that every court has to take its own decision on the bail application before it. no court is bound.....
Judgment:

A.S. Qureshi, J.

1. The present petitioner has filed this application for enlarging him on bail during the pendency of the trial. The petitioner had filed several similar applications for Bail before this Court which have been rejected after considering all the facts and circumstances of the case. The first point urged by Mr. H.H. Advani, the learned Counsel for the petitioner is that it is open to the accused person to file successive applications for bail one after the other on the same facts and circumstances and that each application has to be heard on merits irrespective of the result, of the previous application. This contention of Mr. Advani is contested by Mr. H.M. Mehta, the learned Counsel for the respondent No. 1 stating that while it is open to the petitioner to file successive applications for granting of bail, according to him, normally the court would not entertain a subsequent application unless the petitioner points out any new facts and circumstances that may have come into existence after the rejection of the prior application. Mr. Mehta has urged that earlier applications of the petitioner were fully considered by different Judges of this Court and have been rejected on merits after fully considering all the arguments advanced on behalf of the petitioner. Mr. Advani has urged that it is not necessary that there must be some new facts or circumstances which may have come into existence after the disposal of the previous bail application. On those very facts and circumstances the petitioner can come again to the Court and seek bail. According to Mr. Advani, if the accused person may have failed to persuade one Judge, on that very facts and circumstances of the case he may succeed in convincing another Judge on the very facts and circumstances and if the Court is convinced that this is a fit case where the accused should be enlarged on Bail, the Court may do so unhampered by the previous decisions rejecting the bail applications. The contention of Mr. Advani must be upheld. It is the well established principle that every court has to take its own decision on the Bail application before it. No Court is bound by the decision of another Court rejecting the bail application of an accused person. While hearing the bail application a Court may come to one conclusion but another Court on the same facts and in the same circumstances may arrive at a different conclusion while disposing of the application of the same accused. There is no principle analogous to res judicata applicable to bail applications by an accused. Normally different Courts may come to the same conclusion on the same facts and in the same circumstances, but they are not bound to do so. After all the granting of bail is a discretionary relief, though the discretion is a judicial one.

2. Mr. Advani has further argued that in this case, as a matter of fact, there is some further development after the previous orders were passed by the other Court rejecting the bail applications of the present petitioner. That circumstance, according to Mr. Advani is that, now the actual trial has commenced which was not the case when the previous bail applications were considered by the other Courts. According to Mr. Advani now the trial having commenced after a prolonged delay of several years the chances are that it would conclude reasonably soon and that there is no reason why the present petitioner should continue in detention for any further period in view of the fact that already he has been under incarceration for about 20 months. Mr. Mehta has urged that if the petitioner is enlarged on bail there is a reasonable possibility that the trial will be delayed and that the present petitioner will try to put impediments in the progress of the prosecution by himself or through some of the other accused over whom he has control or influence. According to Mr. Mehta, the long delay in the commencement of the hearing of this case has been mainly due to the present petitioner. He, therefore, submits that the trial can proceed in the normal course and come to, an early end only if the petitioner's application for bail is rejected. According to him, granting the petitioner's application for bail would almost certainly result in indefinite prolonging the proceedings. This case has a very peculiar history of its own. Its progress has been, as tarry as it could be. Hence, is not possible to say that the proceedings will terminate reasonably soon and, therefore, in the interest of justice the trial must proceed as expeditiously as possible. There appears to be a reasonable apprehension that enlarging the petitioner on bail would result in the smooth progress of the case, the present bail application therefore, deserves to be rejected.

3. The next argument advanced by Mr. Advani on behalf of the petitioner is that, while considering the question of granting Bail the Court would consider the gravity of the charge, the likely sentence that may be imposed in the event of conviction and the possibility of the accused jumping the bail. According to him, the petitioner is charged with offences which carry the maximum punishment of 7 Years' R.I. but according to him, in the present case, the likely sentence would be much less because, in the case of other accused who have pleaded, guilty in this case have been given very light sentences. According to him, three accused are given one day's imprisonment each, one accused is given 11 months' R.I. He therefore, submits that it would be reasonable to expect that the present accused may be given R.I. for a couple of years or so. According to him, the present applicant having already been in custody for about 20 months as under-trial prisoner, he may not have to serve his sentence for very long. Hence, Mr. Advani argued that there would be no inducement for the present applicant to abscond. This argument of Mr. Advani is met by Mr. H.M. Mehta by stating that the present applicant is involved in several cases of similar offences and hence his sentence may be for a longer duration even if all the sentences passed against him are ordered to run concurrently. Moreover, Mr. Mehta has urged that among those co-accused who have pleaded guilty, some are minor students. Hence they are awarded only nominal sentence. Therefore, according to Mr. Mehta, the case of the present applicant stands on a different footing. In the facts and circumstances of this case, it is difficult to say as to what would be the length of the sentence that may be imposed. Hence, the argument of Mr. Advani that in view of short period of sentence that the applicant may have now to undergo would not be a sufficient inducement for the applicant to abscond, must be rejected.

4. Mr. Mehta has argued that the present petitioner had failed to appear before the Court in this case on several occasions when he was on bail. Moreover, he had escaped from Aguada Jail at Goa for which there is a case pending against him at Goa. He, therefore, urges that with this history of the present accused, he does not deserve to be enlarged on bail. Mr. Advani has tried to repel this argument of Mr. Mehta by stating that the failure of the accused to appear in this case on certain dates is not of material importance because, according to him, those were only formal dates and the presence of the accused was not necessary. This contention of Mr. Advani is untenable it is not open to the accused who is enlarged on bail to say that he did not appear before the Court on certain dates because he considered those dates to be only formal ones. Non-appearance of the accused who is on bail even on a single date, formal or otherwise, is a sufficient ground for cancellation of the bail. It is not open to an accused to decide whether a particular date is formal. As regards absconding by the present applicant from the Aguada Jail at Goa. although the case is still pending before the Goa Court, that is an important circumstance which cannot be totally ignored while considering the present bail application of the accused. Taking the over-all conduct of the present applicant, it seems that this is not a fit case for granting bail. Hence the application for bail is rejected on this ground also.

5. Mr. Advani has heavily relied on the observations made by the Supreme Court that Bail and not the Jail is the rule and that the relevent considerations while dealing with the application for bail are the likelihood of the accused attending trial regularly, whether he would temper with the prosecution witnesses or interfere with the investigation. According to him, there is nothing to show that the accused is likely to do any of the aforesaid things and hence the petitioner should be granted bail. The principles which are to be taken into consideration while considering the bail application are well known and well established any yet each application for bail has to be considered on its own peculiar facts and circumstances. In this case, as set out above the facts and circumstances are such that the bail application of the present petitioner must be rejected.

Mr. Advani has also argued that if the accused is not enlarged on bail he will not be able to defend himself effectively as the present case is mostly based on documentary evidence and that he needs to search out relevant papers from his house to enable him to defend himself effectively. Mr. Mehta has stated that if the present petitioner were to give a list of documents he wants to rely on and the place where he wants to search for them, arrangement could be made to take him to the place under police custody to enable him to search out those documents. According to Mr. Mehta, this is a very vague assertion for ulterior purpose and hence it should be rejected. It is true that the accused must be afforded all facilities to allow himself to defend fully and effectively. His defence should not be hampered in any way and, therefore, it is directed that if the present applicant applies for making search for any document at a particular place he shall be given necessary facility for the same under proper custody. But his application for bail cannot be granted on this ground as it is rejected on other grounds as stated above.

Lastly Mr. Advani has argued that the present petitioner is a heart patient and although he is in the hospital and getting necessary medical treatment, that is not enough for his health. The applicant, according to him, needs congenial atmosphere which he can get only at his residence where in the company of his relatives and friends he can recover and recoup better. Mr. Mehta has urged that the present applicant is being given every facility to get such medical treatment as he desires to obtain and if he needs any further medical assistance the arrangements can be made for the same. But the accused cannot be enlarged on bail due to the peculiar circumstances of this case. While it is true that the under-trial prisoner is entitled to all the medical facility he needs, but he cannot insist on being enlarged on bail for the purpose of getting congenial atmosphere. If the circumstances of the case require the rejection of the bail application, it cannot be granted on the ground that the accused wants to be in the congenial atmosphere of his home. Hence, this ground also is of no avail to the applicant.

7. In the result, the present bail application meets the same fate as the previous Applications before this Court and is rejected. However, it is directed that the trial will be conducted speedily and brought to an early conclusion. It is also directed that the present applicant will be given necessary facilities for further medical treatment as he may need and will also be given opportunity to carry out search for documents at specified place or places while remaining in proper custody. Rule discharged.


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