Gujarat High Court
Arjun Shivlalbhai Joshi vs State Of Gujarat on 7 February, 2025
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R/CR.MA/2014/2025 ORDER DATED: 07/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE ANTICIPATORY
BAIL) NO. 2014 of 2025
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ARJUN SHIVLALBHAI JOSHI
Versus
STATE OF GUJARAT
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Appearance:
MR VIRAT G POPAT(3710) for the Applicant(s) No. 1
MR KRUTIK PARIKH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 07/02/2025
ORAL ORDER
1. Rule returnable forthwith. Learned APP waives service of
Rule for and on behalf of the respondent-State.
2. By way of present successive pre-arrest bail application
under Section 438 of the Code of Criminal Procedure, 1973, the
applicant-original accused has prayed to release him on
anticipatory bail in the event of his arrest in connection with the
FIR registered at ACB Police Station, Gandhinagar, being C.R
No.11194012240010 of 2024 for the offences punishable under
Sections 7, 7A and 12 of the Prevention of Corruption Act.
3. At the outset, It is worth to mention that earlier by way of
Criminal Misc. Application No.25628 of 2024, the present
applicant approached this Court and the same application came
to be withdrawn vide order dated 2nd January, 2025. Thereafter,
the present successive anticipatory bail application is filed and in
the present matter, the applicant has claimed parity on the
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ground that today, the Co-ordinate Bench of this Court has been
pleased to enlarge the co-accused on regular bail.
3.1. It is needless to say that this application is anticipatory bail
application, which is filed under Section 482 of the BNSS. The
application for regular bail and anticipatory bail must be decided
separately, as both are distinct. The fact that a co-accused has
been granted regular bail does not constitute a valid ground to
extend the benefit of parity in the applicant's case. In this
regard, It would be apposite to refer the decision of the Hon'ble
Apex Court in case of Ramesh Bhavan Rathod vs. Vishanbhai
Hirabhai Makwana Makwana (Koli) & Anr. reported in LL 2021
SC 221 and in case of Tarun Kumar vs. Assistant Director
Directorate of Enforcement reported in 2023 SCC OnLine SC
1486. Perusing the role of the present applicant, it appears that
applicant is not entitled for the benefit for parity as of right.
3.2. The criteria to grant anticipatory bail and regular bail has
been laid down by the Apex Court in various decisions. While
criminal administration of justice disturbed, arrest is a part of
investigation. After the arrest of the accused when substantial
part of the investigation including remand gets over, then the
Court has to exercise jurisdiction considering the evidence
collected during investigation. It is needless to say that Section
438 of the Code is pre-arrest bail as there is a part of
investigation and importance of the arrest is time and again
discussed by the Hon'ble Apex Court. When the involvement of
the accused is prima facie revealed and if allegation is not
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levelled that to defame him/them or to tarnish his/their image,
the Court has to exercise jurisdiction, but to seek anticipatory
bail is not an extraordinary jurisdiction and absolute right of the
accused.
4. Further, present application is second bail application
without any change in the circumstances after withdrawal of
earlier application on 02.01.2025 after 22 days, the applicant
once again filed present application. In view of the above, as
there is no change in the circumstance which means the
reasoning given by the learned Sessions Judge attained the
finality and in absence of any change in circumstance, the present
application for anticipatory bail deserves to be dismissed in light
of the law laid down by this Court in the case of State of Gujarat
vs Kanaksinh Mohansinh Mangrola reported in 2005 (1) GLH
665, wherein this Court held as under:
"While deciding the second successive anticipatory bail
application of the respondent no.1-accused, learned
Sessions Judge has not taken into consideration the
following aspects. Due to change in circumstance, party
can approach the court below or the High Court under
Sec.438 of the Code and court can deal with that point
of change in circumstance only. However, the court
cannot enter into the grounds which were previously
contested by the parties and have become final. Here in
this case, court below has violated the basic principle of
law laid down by the Apex Court on this point by dealing
with all points raised by the accused in the first
application filed under Sec.438 of the Code and which
were already decided by the learned Addl. Sessions
Judge, Surat, in detail with prima-facie reasons. Said
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order was carried further by the accused in the High
Court and at the end of arguments, it was withdrawn
and hence it has become final between the parties and
hence, learned Sessions Judge should not have dealt
with the same points again in the successive
anticipatory applications."
5. Despite the withdrawal of earlier bail application, the
applicant has filed this subsequent anticipatory bail application
without any change in the circumstance of the case. In this regard
also, reference needs to be made to the judgment of the Hon'ble
Supreme Court in the case of G.R. Ananda Babu vs The State of
Tamil Nadu reported in 2021 SCC Online SC 176 and in the case
of Md. Shamim Khan Vs. The State of Jharkhand (Leave to
Appeal (Cri.) No.9449/2021, the Hon'ble Supreme Court
deprecated such practice of filing second application under
Section 438 of the Code after the first being withdrawn/rejected.
5.1. Further, it would be pertinent to refer to the decision of
this Court in the case of Vijaykumar Gandabhai Rabari, passed
in Criminal Misc. Application No. 18340 of 2023 by an order
dated 16.10.2023. In this case, being aggrieved and dissatisfied
with the order of this Court, the applicant approached the Apex
Court through Special Leave to Appeal (Crl.) No(s). 16524 of
2023, wherein the applicant later withdrew the matter before
the Apex Court.
6. For the foregoing reasons as present application being
successive bail application is filed without any changed
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circumstances after 22 days of withdrawal/rejection of the
anticipatory bail application and considering the law laid down in
the above cited decisions of this Court as well as the Hon'ble
Apex Court, this Court is of view that it is not a fit case to
exercise the discretion under Section 438 of the Code/482 of the
BNSS in favour of the applicant. Accordingly, present application
does not deserve any consideration and is hereby dismissed at
the admission stage. Rule is discharged.
(HASMUKH D. SUTHAR,J)
KUMAR ALOK
