IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1562 OF 2008 CRIMINAL APPLICATION NO. 1562 OF 2008 CRIMINAL APPLICATION NO. 1562 OF 2008 Mr.Khalid Yunus Patel ...Applicant (Orig.Complainant) vs. 1. Mr.Aslam Abdul Rahim Patel, 2. Mr.Mushtaq Abdul Rahim Patel, 3. Mr.Mansoor Abdul Rahim Patel, 4. The State of Maharashtra ...Respondents (Resp.Nos.1 to 3 are Original Accused) Mr.Shreekant V. Gavand for the Applicant. Mr.Rajendra Rathod for Respondent Nos.1 to 3. Mr.Rajesh More, APP for the State. with CRIMINAL APPLICATION NO. 2304 OF 2008 CRIMINAL APPLICATION NO. 2304 OF 2008 CRIMINAL APPLICATION NO. 2304 OF 2008 The State of Maharashtra ...Applicant vs. 1. Mr.Aslam Abdul Rahim Patel, 2. Mr.Mushtaq Abdul Rahim Patel, 3. Mr.Mansoor Abdul Rahim Patel ...Respondents (Resp.Nos.1 to 3 are Original Accused) CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : FEBRUARY 26, 2009 DATED : FEBRUARY 26, 2009 DATED : FEBRUARY 26, 2009 P.C. :- P.C. :- P.C. :- 1. Heard the learned Counsel for the applicant and the learned APP for the State and the learned Counsel for the respondents. - 2 - 2. These are the applications filed by the applicant-Complainant and the State for cancellation of bail granted by the Sessions court to the respondents herein. 3. The learned Counsel for the applicant submitted that an offence punishable under Sections 307, 143, 146, 147, 148, 149, 326, 324, 341 of the IPC and under Sections 37(1) and 135 of the Bombay Police Act was registered against the respondents. Initially, an application for anticipatory bail was filed by the respondents in the Sessions Court, however, ad-interim relief was refused and the main application itself was dismissed on the same day. Against this order, an application for anticipatory bail was filed by the respondents in this court. The said application was allowed to be withdrawn. Within a short time thereafter, again a second application for anticipatory bail was filed by the respondents herein. 4. The learned Counsel for the applicant and the learned APP appearing on behalf of the State had - 3 - submitted that though there was no change in the circumstances, the Sessions Court has entertained the second bail application on the same grounds which were initially raised in the first application and granted anticipatory bail to the respondents. It was submitted that the Sessions Court was not justified in entertaining the second application when there was no change in the circumstances and the circumstances which were mentioned by the learned Judge in his order were already present in the first application which was filed by the respondents herein. 5. The learned APP submitted that the reasons which were given by the learned Sessions Judge were perverse. He invited my attention to the statements of witnesses who had in terms witnessed the said incident and had taken the name of the respondents herein as the persons who had assaulted the complainant and the victims with swords, hockey stick and other weapons and as a result, one person has lost his eye and other persons were grievously injured and were given treatment in the hospital for more than one month. - 4 - 6. The learned Counsel for the respondents, on the other hand, submitted that the second application was maintainable in view of the judgment of the learned Single Judge of this Court in the case of Joseph Paul Joseph Paul Joseph Paul vs. Mrs.Shelly Dhall w/o. Sanjesh, reported in 2008 vs. Mrs.Shelly Dhall w/o. Sanjesh, reported in 2008 vs. Mrs.Shelly Dhall w/o. Sanjesh, reported in 2008 ALL MR (Cri) 1010 ALL MR (Cri) 1010 ALL MR (Cri) 1010. He submitted that the change in circumstance was that the investigation was almost over. The statement of all the witnesses had been recorded. Out of 45 who were named as accused, 42 persons were already released on regular bail. Applicant no.1 was a heart patient, applicant no.2 whose daughter was to get married and applicant no.3 had sustained three fractures to his body. He submitted that the Sessions Court had taken into consideration these changed circumstances and had observed that there was discrepancy in the statements of witnesses and the injuries which were received by the victims and therefore, no reliance could have been placed on the said statements. He further submitted that the Sessions Court also had taken into consideration that there are large number of cases filed by the complainant against the respondents therein and - 5 - vice-versa and there was enmity on account of political rivalry. He also submitted that the order passed by the Sessions Court was a reasoned order and it could not be said that the said order was perverse or was not sustainable. 7. I have heard both the learned Counsel for the applicant, the learned APP for the State and the learned Counsel for the respondents, at length. In the present case, though there is no dispute about the fact that the second application for bail is maintainable in view of the ratio of the judgment in Joseph Paul case (supra) Joseph Paul case (supra) Joseph Paul case (supra) and other judgments of this Court and the Apex Court, yet while entertaining the second application, it is a settled position in law that the Court has take into consideration whether there is change in the circumstances and successive applications should not normally be entertained unless it discloses a material change in the circumstances of the case. In the present case, it is apparent that the respondents herein had suppressed from the Sessions court the fact that they had filed an application in this court and the - 6 - application thereafter was allowed to be withdrawn. No such statement was made by the respondents in the application which was filed by the respondents herein before the Sessions Court which is evident from the application which was filed in which a categorical incorrect statement is made that no application was filed in the High Court or was pending in the High Court at the time when the second application was filed. There is, therefore, a clear suppression of fact on the part of the respondents herein and on that ground alone, the order passed by the Sessions Court is liable to be set aside. 8. Even otherwise, in my view, the learned Sessions Judge who entertained the second application strangely had rejected the application for interim anticipatory bail on earlier occasion by coming to the conclusion that the allegations were of a serious nature and wrong signals would be sent if in such applications, interim bail is granted. Quite strangely the learned Judge on a subsequent occasion ignores the said observation which was made by him after going through the merits of the - 7 - case as is evident from his earlier order. So far as grant of bail on medical grounds is concerned, the Sessions Court, even it was satisfied about the ailment of the respondent no.1, ought to have, may have, could have, granted temporary bail. Similarly, in the case of respondent no.2 where the bail was sought on account of marriage ceremony of his daughter, limited bail could have been granted. Similarly, the respondent no.3 who was severely injured and had received three fractures to his body also was granted anticipatory bail not for limited period but during the pendency of the trial. In my view, the learned Sessions Judge has clearly erred in granting indefinite bail to these respondents. Thirdly, even the findings which are recorded by the learned Sessions Judge are perverse. The learned Sessions Judge, at one stage, states that there is a contradiction between the statements of witnesses and the medical evidence which is on record, the learned Sessions Judge, thereafter, proceeds to consider the statements of witnesses and the injuries which are suffered by the said victims. I have perused the said statements and the Medical Certificates. The finding, - 8 - in my view, is totally incorrect and de hors the actual record. The Sessions court also has not taken into consideration the antecedents of the respondents which were brought to its notice by the reply filed by the State. There is no reference to the said antecedents which were brought to the notice of the learned Sessions Judge. The finding, therefore, in my view, to say the least, is patently perverse. The Investigating Officer had filed the reply to the said applications stating the reasons why the custodial interrogation of these respondents are necessary. However, this fact already has been totally ignored by the learned Sessions Judge. Under these circumstances, viewed from any angle, the order passed by the Sessions Court is unsustainable in law and therefore, there is no other option but to set aside and quash the said order of anticipatory bail granted by the Sessions Court in Criminal Misc. Application No.264/2008. 9. The learned Counsel for the respondents had strenuously urged that the bail was granted by the Sessions Court in April 2008 and thereafter, the - 9 - application for cancellation was filed after a lapse of four months by the present applicant and by the State thereafter. He submitted that no allegations have been made that the respondents had not complied with the conditions imposed by the Court or had tried to threaten any of the witnesses or misused the liberty granted. I am afraid this submission also cannot be accepted. The question which falls for consideration before this Court whether the Sessions Court was justified in first place in passing the impugned order and as I have already stated herein, the said order is not sustainable. The said allegation about non-compliance of the orders passed by this Court would arise when the application for cancellation of bail is filed on the ground of breach of the orders passed by this Court. Since this application is filed on the ground that the order itself is unsustainable merely because the respondents have complied with the order, would not be a ground not to interfere with the impugned order. 10. Under the circumstances, the impugned order dated 23rd April, 2008 is set aside. Both the - 10 - applications are allowed. The respondents shall surrender before the learned Sessions court within eight days from today. The Sessions Court shall not be influenced by the observations made by this Court in cancelling the bail and if such an application for bail is filed, it may be heard and decided on its own merits and in accordance with law. 11. The applications are disposed of. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)