Sandip Ashokrao Hiwale vs The State Of Maharashtra
2021 Latest Caselaw 12668 Bom

                                              (1)                      24 ba 431.21

                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               BENCH AT AURANGABAD

                            24 BAIL APPLICATION NO.431 OF 2021
                                     WITH BA/950/2021

                                  SANDIP ASHOKRAO HIWALE
                                           VERSUS
                                 THE STATE OF MAHARASHTRA

                                       ...
  Advocate for Applicants : Mr. V.D. Sapkar, Sr. Counsel h/f. Kadam Nitin S.
                APP for Respondents/State : Mrs. D.S. Jape
                                       ...

                                        CORAM :      M.G. SEWLIKAR, J.

                                        DATE :       6th September, 2021

P.C.:-

Learned APP Smt Jape cited judgment in the case of Gati Limited

V/s. T. Nagarajan Piramiajee and Anr.; 2019 DGLS (SC) 730 for the

proposition that if earlier bail application is rejected by a Judge who is

available at the time of hearing of second bail application it should be placed

before the same Judge. It has been observed as under:

"5. Another aspect of the matter deserves to be noted. The first application for anticipatory bail was rejected by a certain learned Judge, but the second application for anticipatory bail was heard by another learned Judge, though the Judge who had heard the first application was available. This Court in the case of Shahzad Hasan Khan v. Ishtiaq Hasan Khan, (1987) 2 SCC 684, in a similar matter concerning filing of successive applications for anticipatory bail,

(2) 24 ba 431.21

made the following observations:

"5... The convention that subsequent bail application should be placed befor the same Judge who may have passed earlier orders has its roots in principle. It prevents abuse of process of court inasmuch as an impression is not created that a litigant is shunning or selecting a court depending on whether the court is to his liking or not, and is encouraged to file successive applications without any new factor having cropped up. If successive bail applications on the same subject are permitted to be dispoed of by different Judges there would be conflicting orders and a litigant would be pestring every Judge till he gets an order to his liking resulting in the creditability of the court and the confidence of the other side being put in issue and there would be wastage of courts time. Judicial discipline requires that such matters must be placed before the same Judge, if he is available for orders..."

2. Learned counsel Shri Sapkal for the applicant submits that earlier

application was withdrawn as Court was not inclined to grant any relief to the

applicant. This application was disposed of as withdrawn by this Court

(Coram: P.R. Bora, J.). Justice Bora has demitted the office on account of

superannuation, therefore he is not available.

3. This Court by order dated 03.12.2020 (Coram: V.K. Jadhav, J.)

disposed of the application on the ground that the applicant approached this

Court directly without first approaching the Sessions Court. Following

observations were made in the order dated 03.12.2020:

(3) 24 ba 431.21

"The applicant, on this change in circumstance and also on the principle of parity, has filed this application for getting released on bail. It appears that the applicant, instead of approaching the Sessions Court, has directly filed the present application for regular Bail.

2. Learned counsel for the applicant, thus on instructions, seeks leave to withdraw this application with liberyt to the applicant to file an application before the Sessins Court on the aforesaid change in circumstance so also on the principle of parity.

3. Leave granted. The application is disposed off as withdrawn with liberty to the applicant to file an application for regular bail before the Sessions Court on the above mentioend change in circumstance so also on the principle of parity. Upon filing of such application, the Sessions Court may decide the same on its own merits."

4. It appears from these observations that this Court (Coram: V.K.

Jadhav, J.) in its order dated 03.12.2020 did not dispose of the application on

merits but on the ground that the applicant had directly approached this Court

without first approaching the Sessions Court. It was disposed of on technical

ground and not on merits. Therefore, the submissions of the learned APP

cannot be accepted.

5. Learned APP Smt. Jape seeks time. She states that she will

prepare the chart indicating the amount of misappropriation allegedly

(4) 24 ba 431.21

committed by the applicant and other directors. Stand over to 8 th September,

2021. Learned APP to supply copy of the chart to the learned counsel for the

applicants well in advance.

[M.G. SEWLIKAR, J.]

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