... 1 ... IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.281 OF 2007 APPLICATION NO.281 OF 2007 APPLICATION NO.281 OF 2007 Sudhakar Waman Ahire ...Applicant Versus State of Maharashtra ...Respondent Shri Subhash Jha alongwith Shri Ghansham Upadhyay i/by M/s.Law Global for the Applicant. Ms Rajashree Gadhavi, A.P.P for the Respondent. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : MARCH 15, 2007. : MARCH 15, 2007. : MARCH 15, 2007. P.C.: P.C.: P.C.: 1. I have heard detailed submissions made by the learned Advocate for the Applicant. Offence has been registered against the Applicant under section 406, 420, 467, 468, 471, 120-B read with section 34 of the Indian Penal Code. Earlier Application for bail filed by the Applicant was rejected by me by order dated 04th July, 2005. This second Application for bail filed by the Applicant has been assigned to this Court as per the administrative order dated 08th February, 2007 passed by the Hon’ble the Acting Chief Justice. 2. The case of the prosecution in short is that one Yasir Dawood Khan and his brother are promoters and directors of a private limited company. A representation was made on behalf of the said private ... 2 ... limited company to various banks that the said company was dealing with arranging finance for purchasing new vehicles. The said private limited company was having a current account in State Bank of India, Opera House Branch, Mumbai. According to the case of the prosecution, the said Yasir Khan and his brother submitted various documents to the State Bank of India, Opera House Branch and the State Bank of Bikaner and Jaipur as well as State Bank of Indore, Malad Branch, Mumbai. The said documents were relating to the income of the customers of the company, income tax returns of their customers and documents by way of proof of their residential address etc. According to the prosecution case, on the basis of the said documents large amounts by way of loan have been disbursed to the extent of Rs.1,62,07,000.00/- by the aforesaid three banks. The allegation of the prosecution is that the copies of the income tax returns, income tax challans and other documents produced by the said company were found to be fabricated. The said Yasir Khan was arrested by the police. However, his brother Faizal Khan is still absconding. 3. In the earlier bail Application, three grounds were urged by the Applicant. The first one was parity on the basis of bail granted in favour of other ... 3 ... co-accused. The second ground was the ailment of Applicant’s wife and the third ground was that the Applicant was in jail for last more than one year and as trial was not likely to commence in near future, the Applicant was entitled to be enlarged on bail. This Court by order dated 04th July, 2005 considered all the three grounds and rejected the Application for bail. This Court observed that recovery of 35 different rubber stamps of income tax officers and various branches of State Bank of India was made from the residence of the Applicant. 4. The learned counsel for the Applicant in support of this Application has placed reliance on various decisions of the Apex Court. He relied on the decision of the Apex Court in the case of Babu Singh and Others Babu Singh and Others Babu Singh and Others Vs. Vs. Vs. State of U.P. [(1978) 1 Supreme Court Cases Page State of U.P. [(1978) 1 Supreme Court Cases Page State of U.P. [(1978) 1 Supreme Court Cases Page 571] 571] 571]. Relying upon the said decision, he submitted that an order rejecting an Application for bail does not necessarily preclude another, on a later occasion giving more materials, further developments and different considerations. He submitted that even if earlier bail Application was rejected, there is no bar against giving second consideration to the prayer for bail. He invited my attention to the various provisions of the Code of Criminal Procedure, 1973 and in particular section 29 ... 4 ... thereof. He submitted as the case was pending in the court of the learned Additional Chief Metropolitan Magistrate, Mumbai, maximum sentence which can be awarded is for a term upto seven years. He pointed out that the Applicant is languishing in jail for a period of 32 months and 17 days. He submitted that as prosecution desires to examine 57 witnesses, there is no possibility of trial being concluded within a reasonable time. He placed reliance on various decisions case of Mehmood Mohammad Sayeed Vs. State of Maharshtra [(2001) 3 Crimes 163(SC)], Bhausaheb Nagu Dhavare Vs. State [(2001) 3 Crimes 410 (SC)] and M.L.Vardukar Vs. State of Gujarat [(2001) 3 Crimes 192 (SC)]. He submitted that there was hardly any material against the Applicant and considering the fact that he has already spent 32 months in jail, this is a fit case for granting bail. 5. The learned A.P.P opposed the Application by pointing out that considering the gravity of the offence, no case is made out for grant of bail. However, the learned A.P.P admitted that the prosecution desires to examine 57 witnesses. The learned A.P.P stated that the complainant is already examined and he is under cross examination. 6. I have considered the submissions. It will be ... 5 ... necessary to refer to the decision of the Apex Court in the case of Babu Singh (supra). The Apex Court was considering the issue of maintainability of successive bail Application. The Apex Court considered provisions of Article 21 of the Constitution of India and came to the conclusion that under certain circumstances second bail Application can be considered notwithstanding the rejection of the first bail Application. In paragraph No.2 of the said decision, the Apex Court observed as under: "But an order refusing an application for bail does not necessarily preclude another, on a later occasion, giving more materials, further developments and different considerations. While we surely must set store by this circumstance, we cannot accede to the faint plea that we are barred from second consideration at a later stage. An interim direction is not a conclusive adjudication, and updated reconsideration is not overturning an earlier negation. In this view, we entertain the application and evaluate the merits pro and con". 7. The decision in the case of Babu Singh (supra) ... 6 ... was delivered by a bench consisting of the two Hon’ble Judges of the Apex Court. The scope of successive bail Application was recently considered by a larger bench of Apex Court in the case of Kalyan Chandra Sarkar Vs. Kalyan Chandra Sarkar Vs. Kalyan Chandra Sarkar Vs. Rajesh Rajesh Rajesh Ranjan alias Papu Yadav and another [(2005) 2 Ranjan alias Papu Yadav and another [(2005) 2 Ranjan alias Papu Yadav and another [(2005) 2 Supreme Supreme Supreme Court Cases page 42] Court Cases page 42] Court Cases page 42]. The Apex Court considered the scope of successive bail Application and held in paragraph Nos.18 and 19 of the said decision as under: ". In that process a person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if if if there there there is a change in the fact situation is a change in the fact situation is a change in the fact situation. In such cases if the circumstances then prevailing require that such persons be released on bail, in spite of his earlier applications being rejected, the courts can do so. 19. 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 The The ... 7 ... findings findings findings of a higher court or a coordinate of a higher court or a coordinate of a higher court or a coordinate Bench Bench Bench must receive serious consideration at must receive serious consideration at must receive serious consideration at the the the hands of the court entertaining a bail hands of the court entertaining a bail hands of the court entertaining a bail application application application at a later stage when the same had at a later stage when the same had at a later stage when the same had been been been rejected earlier. In such an event, the rejected earlier. In such an event, the rejected earlier. In such an event, the courts courts courts must give due weight to the grounds must give due weight to the grounds must give due weight to the grounds which which which weighed with the former or higher court weighed with the former or higher court weighed with the former or higher court in in in rejecting the bail application. rejecting the bail application. rejecting the bail application. Ordinarily, Ordinarily, Ordinarily, the issues which had been the issues which had been the issues which had been canvassed canvassed canvassed earlier would not be permitted to be earlier would not be permitted to be earlier would not be permitted to be reagitated reagitated reagitated on the same grounds, as the same on the same grounds, as the same on the same grounds, as the same would would would lead to a speculation and uncertainty in lead to a speculation and uncertainty in lead to a speculation and uncertainty in the the the administration of justice and may lead to administration of justice and may lead to administration of justice and may lead to forum forum forum hunting hunting hunting".(Emphasis supplied) 8. It must be noted here that the larger bench of the Apex Court held that the issues which had been canvassed earlier would not 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. The Apex Court held that subsequent bail Application can be filed if there is a change in fact situation. In paragraph No.20 the Apex Court proceeded to observe as under: "20. The decisions given by a superior ... 8 ... forum, undoubtedly, are binding on the subordinate fora on the same issue even in bail matters unless of course, there is a material change in the fact situation calling for a different view being taken. Therefore, Therefore, Therefore, even even even though there is room for filing a though there is room for filing a though there is room for filing a subsequent subsequent subsequent bail application in cases where bail application in cases where bail application in cases where earlier earlier earlier applications have been rejected, the applications have been rejected, the applications have been rejected, the same same same can be done if there is a change in the can be done if there is a change in the can be done if there is a change in the fact fact fact situation or in law which requires the situation or in law which requires the situation or in law which requires the earlier earlier earlier view being interfered with or where view being interfered with or where view being interfered with or where the the the earlier finding has become earlier finding has become earlier finding has become obsolete obsolete obsolete".(Emphasis supplied) Thus, the Apex Court has held that the second bail Application can be considered if there is a change in fact situation or in law which requires earlier view being interfered with or where the earlier finding has become obsolete. The Apex Court observed that there has to be a material change in the fact situation calling for a different view being taken. Therefore, the case made out by the Applicant will have to be considered in the light of the said decision of the Apex Court in the case of Kalyan Chandra Sarkar (supra). 9. The earlier Application for bail filed by the ... 9 ... present Applicant was rejected on 04th July, 2005. It is true that the Applicant is in custody for last 32 months. The ground which is urged in this Application was already urged when the earlier bail Application was rejected. Now the trial has commenced and the complainant is already under cross-examination. As of today, it cannot be said that there is a material change in circumstances or fact situation which requires the earlier view being interfered with. Therefore, as of today, considering the gravity of allegations against the Applicant, no case is made out for grant of bail. If the trial which is already commenced is not concluded in a reasonable time, it will be always open for the Applicant to apply for bail afresh. 10. Subject to what is stated above, Application is rejected. JUDGE JUDGE JUDGE