Gujarat High Court

Ravibhai Rajubhai Parmar vs State Of Gujarat on 15 September, 2023

Bench: Bhargav D. Karia

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   R/CR.MA/1443/2023                                   ORDER DATED: 15/09/2023

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          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL MISC.APPLICATION NO. 1443 of 2023

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                        RAVIBHAI RAJUBHAI PARMAR
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR SATISH A PANDYA(556) for the Applicant(s) No. 1
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                               Date : 15/09/2023

                                ORAL ORDER

1. Heard learned advocate Mr.Satish A.

Pandya for the applicant and learned

Additional Public Prosecutor Mr.Dhawan

Jayswal for the respondent-State.

2. By this Application under Section 439

of the Code of Criminal Procedure, 1973

(for short 'the Code'), the applicant has

prayed for bail in connection with the

complaint being CR.No.11204047200032

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registered with Nadiad Western Police

Station for offences punishable under

Sections 489A, 489C, 489D and section 120B

of the Indian Penal Code (for short 'the

IPC')

3. This is a second Successive Bail

Application preferred by the applicant.

Earlier after filing the charge-sheet,

Bail Application being Criminal Misc.

Application No.21916/2021 preferred by the

applicant was withdrawn by an order dated

24.02.2022.

4. Learned advocate Mr.Satish Pandya for

the applicant submitted that applicant

herein is original accused no.3 in the FIR

and the allegation against the applicant

in the FIR and the charge-sheet is that he

abetted original accused no.1

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Shailendrasinh Janaksinh Parmar in

printing the fake counterfeit currency

notes of Rs. 500/- and the said currency

notes as well printing machine were found

in the house of the applicant herein.

5. It was submitted that though trial has

commenced, till date only seven witnesses

have been examined and neither any witness

has supported the case of the prosecution

nor the prosecution has been successful in

proving the prima facie involvement of the

applicant herein in the said offence. It

was submitted that the panch witnesses

have stated in the trial that they had

seen the currency notes in the police

station and such currency notes were

seized in police station and not in the

house of the applicant herein, which

according to the learned advocate for the

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applicant is a change of circumstances. It

was further submitted that all the seven

witnesses have turned hostile and

therefore, this Court may be pleased to

grant bail to the applicant.

6. It was submitted that the applicant

was arrested on 07.02.2022 and till date

seven witnesses have been examined whereas

about 36 witnesses are to be examined and

therefore, trial is not likely to get over

in near future and therefore, without any

reason the applicant would have to remain

in jail till trail gets completed. It was

submitted that denial of bail before

completing the trial would curtail the

fundamental right i.e. liberty of life

guaranteed under Article 21 of the

Constitution of India.

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7. It was submitted that the applicant is

an innocent person and the Investigating

Officer has falsely implicated him in the

said case and therefore, this Court may be

pleased to granted bail to the applicant.

8. It was submitted that the charge-sheet

is already filed on 31.03.2020 before the

concerned Court and there is no

likelihood of the applicant tampering or

hampering with the investigation or the

witnesses. It was submitted that the

applicant has no criminal antecedents. It

was further submitted that the applicant

has family and land in his village and the

applicant is a law abiding citizen and

would abide by any condition which this

Court may impose while granting the bail.

9. It was further submitted that none of

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the ingredients of offences under Sections

489A, 489C, 489D and section 120B of the

Indian Penal Code are attracted as the

prosecution is not in a position to show a

single evidence against the applicant.

10. It was submitted that the entire story

of prosecution depends upon statement of

co-accused Shailendrasinh Janaksinh

Parmar. It was submitted that by now it is

well settled that statement of the co-

accused is not admissible in the evidence

under section 25 of the Evidence Act and

therefore, this Court may be pleased to

grant bail to the applicant on any

condition that this Court may deem fit.

11. Relying upon the judgment in case of

Sanjay Chandra v. CBI reported in (2012) 1

SCC 40, it was submitted that when there

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is likelihood of delay in the trial, bail

should be granted to the accused. He

relied upon the following observations of

the Hon'ble Apex Court in the said

judgment:

"26) When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is whether the same is possible in the present case. There are seventeen accused persons.

Statement of the witnesses runs to several hundred pages and the documents on which reliance is placed by the prosecution, is voluminous. The trial may take considerable time and it looks to us that the appellants, who are in jail, have to remain in jail longer than the period of detention, had they been convicted. It is not in the interest of justice that accused should be in jail for an indefinite period. No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter us from enlarging the appellants on bail when there is no serious contention of the respondent that the accused, if released on bail, would interfere with the trial or tamper with

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evidence. We do not see any good reason to detain the accused in custody, that too, after the completion of the investigation and filing of the charge-sheet."

12. It was therefore, submitted that it

would not be proper to detain the accused

in the custody that too after completion

of the investigation and filing of the

charge-sheet and therefore, this Court may

be pleased to enlarge the applicant on

bail on any condition that this Court may

deem fit in the interest of justice.

13. On the other hand, learned Additional

Public Prosecutor Mr.Dhawan Jayswal for

the respondent-State submitted that the

applicant is not required to be enlarged

on bail considering the fact that this is

a second successive Bail Application and

the applicant has failed to point out any

change in the circumstances for granting

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the bail. Learned APP Mr. Jayswal also

placed reliance on decision of this Court

in case of Arvindkumar Chenaji Barot v.

State of Gujarat (Judgment dated

22.07.2022 passed in Criminal Misc.

Application No.7066 of 2022) to submit

that this Court in absence of any new

ground being canvassed by the applicant

after rejection of the earlier bail

application, had rejected the successive

bail application. It was therefore

submitted that the applicant cannot be and

should not be enlarged on bail.

14. Having heard the learned advocates for

the respective parties and having

considered the facts of the case, I am of

the opinion that grounds stated by the

applicant in the successive bail

application as well as those submitted

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before this Court during his submission,

cannot be said to be the change in

circumstances for enlarging the applicant

on bail, more particularly, when the trial

is underway.

15. This Court as well as the Hon'ble

Supreme Court in the following decisions

has time and again held that in the

Successive Bail Application, the Court

should not exercise the discretion to

enlarge the applicant-accused person on

bail:

(1) In case of Shyamdutt Upadhyay and

Another v. State of Gujarat reported in

1992(1) GLH 259, wherein this Court has

held as under:

"4. ... When a Court is not inclined to grant the bail, it would give some reasons rejecting the application,

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which might come in the way of the accused during the trial and because of that the Advocate for the accused would prefer to withdraw the application instead of getting the application rejected with reasons. In such an event the subsequent bail application of the same accused cannot be entertained, unless and until fresh circumstance or ground is made out by the accused for releasing him on bail. In this case, no new ground is made out by the petitioners for releasing them on bail. Therefore, this application is required to be rejected."

(2) In case of State of Gujarat

v.Alpeshbhai Navinbhai Patel reported in

2004(1) GLH 754, wherein this Court has

held as under:

"9. ...Normally, the substantial change in the circumstances are being considered stage wise, i.e. (i) at the stage of considering the matter for granting anticipatory bail, (ii) at the stage of considering the matter for regular bail before the charge sheet when the investigation is in progress and (iii) after filing of charge sheet and after completion of

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investigation."

(3) In case of Kalyan Chandra Sarkar v.

Rajesh Ranjan @ Pappu Yadav and Another

reported in 2005(3)GLH 601, wherein this

Court has held as under:

"18. 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 applicable 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 speculation and uncertainty in the administration of justice and may lead to forum hunting.

19. 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,

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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."

(4) In case of State of Maharashtra v.

Budhikota Subbarao reported in 1989 (0)

GLHELSC 28635, wherein it is held as

under:

"7. Once that application was rejected there was no question of granting a similar prayer. That is virtually overruling the earlier decision

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without there being a change in the fact situation. And when we speak of change, we mean a substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. ...For the above reasons we are of the view that there was no justification for passing the impugned order in the absence of a substantial change in the fact- situation. That is what prompted Shetty, J. to describe the impugned order as 'a bit out of the ordinary'. Judicial restraint! demands that we say no more."

16. Even otherwise, the allegation against

the applicant in the complaint is that he

had abetted the crime of printing the fake

counterfeit currency notes of Rs. 500/-

and the said currency notes as well

printing machine was found in the house of

the applicant herein which is of serious

nature which prescribes punishment for

imprisonment for life or with imprisonment

of either description for a term which may

extent to ten years and shall also be

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