( 1 ) 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.634 OF 2008 CRIMINAL APPLICATION NO.634 OF 2008 CRIMINAL APPLICATION NO.634 OF 2008 1. Kemja Namdeo Shinde 2. Pramod Dilip Shinde .. Applicants. Versus The State of Maharashtra .. Respondent. Mr.S.V.Sadavarte for the applicants. Mr.K.V.Saste, A.P.P. for State. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATED : 25th April, 2008. DATED : 25th April, 2008. DATED : 25th April, 2008. JUDGEMENT :- JUDGEMENT :- JUDGEMENT :- 1. Heard Mr.S.V.Sadavarte for the applicants and Mr.K.V.Saste, A.P.P. for the State. 2. After facing the rejection of the bail application No.339 of 2008 by order dated 11.12.2007, the petitioners have filed this bail application. 3. As the matter was called out, learned Advocate Mr.Saste tendered in the Court, a sealed envelope received from Tehsildar, Indapur purported to be ( 2 ) containing parade memo in regard to the present petitioners. This Court was of the view that it would not be proper to open the envelope containing original parade memo as it might result in some complications in the trial. Hence, the sealed envelope is returned to the learned A.P.P. Mr.Saste for onward transmission to the very person, who made it available to him. 4. Learned Advocate Mr.Sadavarte drew my attention to the fact that in the application which was filed before the learned Additional Sessions Judge, Baramati, which came to be rejected on 11.12.2007, there was a specific averment that the charge-sheet has been filed thereby contending that the application for bail dated 23.11.2007 was filed at a stage "after the filing of the charge-sheet" "after the filing of the charge-sheet" "after the filing of the charge-sheet". 5. The order dated 11.12.2007 passed thereby rejecting the application for bail by contending that as on 9.10.2007, application for bail is rejected and, therefore, on the same points bail application cannot be granted. Now, undoubtedly, the learned Additional Sessions Judge, Baramati has made a passing reference to alleged recovery at the instance of the accused Khemja Shinde as also the point that the petitioner - accused have been identified. However, the order ( 3 ) dated 11.12.2007 nowhere mentions as to whether the learned Judge has considered the text of the charge-sheet and as to whether the order is passed accordingly. 6. The learned Advocate Mr.Sadavarte submitted that copy of the charge-sheet supplied to him does not include the parade memo. When the original parade memo was sought to be handed over to this Court in the sealed envelope how is it that the learned Trial Judge came to the conclusion that in the identification parade, the petitioners have been identified. All this will clearly go to show that it is necessary to mention that the learned Additional Sessions Judge, Baramati was required to consider charge-sheet as a whole and consider the plea of the petitioners on merits rather than coming to the conclusion that because application was dismissed on 9.10.2007, there was no need to grant bail to the petitioners. 7. In my view, the order dated 11.12.2007 does not specifically indicate whether the learned Additional Sessions Judge, Baramati did consider the prayer for bail on the basis of the charge-sheet or otherwise. 8. After hearing the aforesaid part of the order, ( 4 ) learned Advocate Mr.Sadavarte submitted that the petitioners be given an opportunity to file a fresh bail application on the basis of the text of the charge-sheet supplied to them and then the petitioners be permitted to make out a plea for bail so that the petitioners would be able to take the benefit of the charge-sheet and apply for bail. Mr.Sadavarte submitted that in the Court below, the petitioners be furnished with a Xerox copy of the memorandum of parade so that they can peruse the same and make out a case for bail. The suggestion given by Mr.Sadavarte is fair as in my view, it would be the bounden duty of the learned Additional Sessions Judge, Baramati to pass an order by making a reference to the charge-sheet and the contents thereof and then observing whether the petitioners are entitled to bail or otherwise. In this view of the matter, the petitioners are required to be permitted to withdraw this application with liberty to file a fresh bail application and it would be necessary to pass appropriate directions to enable the learned Additional Sessions Judge to follow the set procedure and dispose off the bail application on merits without getting influenced by the fact that the petitioners, at one point of time had moved for bail. For the reasons mentioned aforesaid, I pass the following order :- ( 5 ) a) The learned A.P.P. appearing in Sessions Case No.22 of 2008 in the Court of learned Additional Sessions Judge, Baramati as well as the learned Advocate for the petitioners shall make a joint mention of the Sessions Case No.22 of 2008 before the learned Additional Sessions Judge, Baramati on 30/04/2008 at 11.00 a.m. At that time, the learned A.P.P. shall tender in the Court the sealed packet containing the text of the parade memo which was sought to be done today before this Court. The learned Additional Sessions Judge, Baramati will arrange to open the said sealed packet and will arrange to see that the Xerox copy of the parade memo would be delivered to the learned Advocate for the petitioners to enable him to prepare a bail application. b) After receiving the copy of the parade memo, the petitioners are permitted to file a fresh bail application on the basis of the charge-sheet by making out a case for bail. Such a bail application filed by the petitioners shall be considered by the learned Additional Sessions Judge, Baramati regardless ( 6 ) as to what has happened in the past including passing of the order dated 11.12.2007 and moving this Court by way of this bail application. The learned Additional Sessions Judge, Baramati shall hear and dispose off that very bail application filed as per the above scheme as early as possible on merits. c) No views are expressed on merits of the matter. d) The present bail application filed by the petitioners is allowed to be withdrawn in view of the aforesaid directions. 9. The stenographer to prepare operative part of this judgement and the learned Advocate Mr.Sadavarte to collect the authenticated copy of the operative part of this judgement and arrange to produce it before the learned Additional Sessions Judge, Baramati to enable the learned Additional Sessions Judge, Baramati to act upon it. (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)