1 Cri.A.5209.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 5209 OF 2011 Vijaykumar Namdeorao Sonawane, R/o Phule Colony, Parbhani, District Parbhani. ...APPLICANT. VERSUS The State of Maharashtra, ...RESPONDENT. ... Smt.Sadhana S.Jadhav,Advocate holding for Shri.Satej S.Jadhav, Advocate for Applicant. Shri.B.J.Sonwane, A.P.P. for Respondent­State. ... CORAM: R.Y.GANOO, J. DATE : 22.12.2011. PER COURT : 1. Heard learned counsel on both sides. 2. The applicant is arrested in connection with Crime No. 129 of 2011, registered with Kotwali Police Station, Parbhani District Parbhani, under sections 302, 147, 148, 149 of the Indian Penal Code. Copy of the charge­sheet is made available to the Court. In view of the submission made across the bar and oral request made to the Court, 2 Cri.A.5209.11 it will not be necessary to go into the various material which were placed before the Court through charge­sheet. 3. The incident is of 19.07.2011 and in the incident one Kalyan has died. According to the prosecution, present applicant was one of the assailant. The present applicant was arrested on 20.07.2011. It is noticed that before filing of the charge­sheet present applicant had filed an application for bail and said application was rejected. It is conceded by learned advocate for the applicant that an application for bail after filing of charge­sheet was filed in the Court of learned Additional Sessions at Parbhani, being Criminal Misc. Application No. 623 of 2011. It is noted that said application is rejected by speaking order dated 21.11.2011.(Hereinafter referred to as 'Said Order') 4. Perusal of the said order would go to show that while deciding said Criminal Misc. 3 Cri.A.5209.11 Application No. 623 of 2011 a copy of the charge­ sheet was before the learned Additional Sessions Judge. 5. Learned Advocate appearing on behalf the applicant before the learned Additional Sessions Judge had pointed out the fact that the charge­ sheet was filed and that is how the application for bail was argued under the caption "Application for bail after filing of the charge­sheet'". 6. Reading of the aforesaid order dated 21.11.2011, would go show that learned Government Pleader submitted before the learned Additional Sessions Judge that filing of charge­sheet is not a change in circumstance. Reading of further part of said order shows that the learned Additional Sessions Judge opined that filing of the charge­ sheet is not a change in circumstance, relevant observation is as follows: "I am of the opinion that mere filing of the charge­sheet is not 4 Cri.A.5209.11 change in circumstance" . Thereafter the learned Additional Sessions Judge considered the case of the present applicant and rejected the said bail application. 7. Learned Advocate appearing on behalf of applicant submitted that observation of the learned Additional Sessions Judge that filing of charge­sheet is not change in circumstance is not correct. She submitted that learned Additional Sessions Judge, should have noted the two stages of application for bail, namely, (i) Application for bail before filing of the charge­sheet and (ii) application for bail after filing of the charge­sheet. She submitted that if an application for bail before filing of the charge­sheet is rejected that should not be considered while deciding an application for bail filed on the strength of charge­sheet i.e. under the caption "Application for bail after filing of the charge­ sheet". 8. The learned advocate for the applicant 5 Cri.A.5209.11 submitted that once charge­sheet is filed, said application should be considered afresh on the basis of the charge­sheet without going into the past namely rejection for the application for bail filed prior to filing of charge­sheet. She further submitted that when an application for bail is filed, after filing of the charge­sheet there is no question of looking to the said application from angle of "change in circumstance". She submitted that the term change in circumstance is required to be looked into only when application for bail is rejected and then second application for bail is filed at the same stage viz Application for bail before charge­sheet or application for bail after charge­sheet. 9. Learned advocate for this applicant submitted that applicant be given liberty to make a fresh application before the learned Additional Sessions Judge and bring it to his notice that application is filed after filing of charge­sheet so that learned Additional Sessions Judge can apply his 6 Cri.A.5209.11 mind with reference to the charge­sheet and material, and decide the same on merits without going into the past. 10. Learned advocate for the applicant submitted that, learned Additional Sessions Judge did not apply his mind in proper perspective. She submitted that the words used "I am of the opinion that merely filing of the charge­sheet is not change in circumstance" clearly show that the learned Additional Sessions Judge has not considered the entire material and has rejected the said application for bail. She submitted that in the interest of justice and to protect the liberty of the applicant her request be granted. 11. Mr. Sonwane, learned APP opposed the submission by contending that the said order looked into as whole clearly indicates that the learned Additional Sessions Judge had applied his mind in the proper perspective and has thereafter rightly rejected the application. 7 Cri.A.5209.11 12. I have perused Criminal Misc. Application No. 623 of 2011 as well as said order. I have considered the rival submissions. The words used by the learned Additional Sessions Judge which are quoted above clearly indicate that the learned Additional Sessions Judge looked into this Criminal Misc. Application No. 623 of 2011 to ascertain whether there was any change in circumstance. It also shows that if there would have been any change in circumstance, he would have considered that change in circumstance and decided the matter. The course adopted was not proper. It was necessary for the learned Additional Sessions Judge to note in the first place that Criminal Misc. Application No. 623 of 2011 was filed after service of the charge­sheet upon the applicant and therefore it was necessary for him to go through the entire charge­sheet, briefly discuss the material placed before him through charge­sheet, consider the points raised by the applicant and decide the application. In 8 Cri.A.5209.11 my view, the said order dated 21.11.2011 was passed without application of mind from this angle. I am therefore inclined to grant liberty to the applicant to file a fresh application before the learned Additional Sessions Judge for bail under the caption "Application for bail after filing of the charge­sheet". Once such application is filed such application will have to be decided on merits by applying tests as regards grant of bail "after filing of the charge sheet." 13. It is required to be mentioned that instances of similar nature were noted by this Court very recently. If an application for bail is filed 'after charge­sheet' same is treated very commonly like an application filed under the heading 'Application for bail before charge­sheet' and citing rejection of earlier bail application filed 'before charge­sheet,' said bail application is rejected. In my view, position as regards entertaining a bail application filed after filing of the charge­sheet is well settled viz orders 9 Cri.A.5209.11 passed prior to filing of charge­sheet cannot be used to reject the application filed under the caption "Application for bail after charge­ sheet". 14. The law is well settled. Once charge­sheet is filed the accused has every right to file an application for bail under the caption 'Application for bail after the charge­sheet' and submit before the Court that his case deserve to be considered in the light of charge­sheet. In such case, it would be mandatory for the Court to consider the charge­sheet, appreciate the material, and pass an order on merits. Once such an application is rejected and then a second bail application is filed then the Court will have to consider the change in the circumstance. 15. The above observation would be equally applicable in cases where application for bail is filed after filing of the charge­sheet before the Court of Judicial Magistrate First Class. 10 Cri.A.5209.11 16. For the aforesaid reasons following order is passed. (i) As per the request of learned advocate for applicant the present application is allowed to be withdrawn with liberty to file a fresh application in the Court of learned Additional Sessions Judge under the caption "Application for bail after filing of the charge­sheet". Once such an application is filed, learned Additional Sessions Judge, to whom such bail application is assigned shall hear and decide the application on its own merits. (ii) If an application is filed, the learned Principal District and Sessions Judge Parbhani shall decide it by himself or assign it to some other Judge. (iii) Registrar(General) is directed to circulate the copy of this order to all Judicial Officers working under the control of this High Court. 11 Cri.A.5209.11 (iv) Office to supply authenticated copy of this order to the applicant. The applicant shall place the said copy before the Principal District and Sessions Judge, Parbhani for further action. Sd/­ [ R.Y.GANOO, J.] MTK