IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE CRIMINAL APPLICATION NO. 884 OF 2008 CRIMINAL APPLICATION NO. 884 OF 2008 CRIMINAL APPLICATION NO. 884 OF 2008 Vicky @ Victor Julias Manthera. ... Applicant. V/s. The State of Maharashtra. ... Respondent. WITH WITH WITH CRIMINAL APPLICATION NO. 996 OF 2008 CRIMINAL APPLICATION NO. 996 OF 2008 CRIMINAL APPLICATION NO. 996 OF 2008 Sachin Murlidhar Rawatale. ... Applicant. V/s. The State of Maharashtra. ... Respondent. WITH WITH WITH CRIMINAL APPLICATION NO. 1025 OF 2008 CRIMINAL APPLICATION NO. 1025 OF 2008 CRIMINAL APPLICATION NO. 1025 OF 2008 1. Gangwa Ramaapa Ragopgol, 2. Ramaapa Hanumant Ragopgol. ... Applicants. V/s. The State of Maharashtra. ... Respondent. S.C.Halli i/b. S.P.Hulyalkar for the applicant. J.P.Yagnik, A.P.P. for the State. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. DATED: 20th June 2008. DATED: 20th June 2008. DATED: 20th June 2008. ORDER : ORDER : ORDER : ----- ----- ----- . All these three applications, filed under section 439 of Code of Criminal Procedure, 1973, though arise out of different crimes registered against different applicants, can be disposed of by this common order since issue involved is identical and submissions advanced were common. 2. It is not necessary to sketch factual matrix arising from each case except to mention that earlier bail applications moved in these three matters were allowed to be withdrawn unconditionally under different orders passed by different learned single Judges of this Court. The Issue : The Issue : The Issue : --------- --------- --------- 3.. The common question involved in all these applications is:- "Whether the successive bail application, without there being any material change in fact situation is maintainable?" The Submissions : The Submissions : The Submissions : --------------- --------------- --------------- 4. The learned counsel appearing for the applicant strongly canvassed that in spite of withdrawals of earlier bail applications, successive bail applications are tenable even in absence of change in fact situation. He placed reliance on the - 3 - judgment of the Apex Court in the case of Kalyan Kalyan Kalyan Chandra Sarakar v. Rajesh Ranjan Chandra Sarakar v. Rajesh Ranjan Chandra Sarakar v. Rajesh Ranjan, 2005 Cri.L.J. 944. He also pressed into service some of the judgments of the learned single Judges of this Court in support of his submission. 5. The above submission is strongly countered by the learned A.P.P., appearing for the State contending that it is open to the aggrieved party to make bail applications, subject to change in the fact situation, which may warrant fresh consideration. In his submission, it prevents abuse of process of Court in as much as impression is not created that the litigants are shunning or selecting a Court depending on whether the Court is to his liking or not. If successive bail applications on the same subject are permitted to be disposed of by different judges, there would be conflicting orders and litigants would be pestering every judge till he gets a favourable order. He submits that forum shopping has to be avoided in larger interest of justice and to maintain majesty of the Courts. - 4 - Consideration : Consideration : Consideration : ------------- ------------- ------------- 6. Having heard rival views, having taken stock of the various judgments cited at the bar, first I propose to refer to the judgment of the Apex Court in the case of Kalyan Chandra Sarakar Kalyan Chandra Sarakar Kalyan Chandra Sarakar (supra) which, in ultimate analysis, holds as under : "Therefore we are not in agreement with the argument of the learned counsel for the accused that in view of guaranty conferred on a person under Article 21 of the Constitution of India, it is open for the aggrieved person to make bail application even on the ground rejected by the Court earlier including the Apex Court of the country." (Emphasis supplied) The very same view has been taken by learned single Judge of this Court (Shri Gavai, J.) in Kailash s/o. Kailash s/o. Kailash s/o. Dhirajlal Gandhi v. State of Maharashtra Dhirajlal Gandhi v. State of Maharashtra Dhirajlal Gandhi v. State of Maharashtra, 2007 (2) Mh.L.J. 850 while holding that the successive bail application can be entertained even after rejection of earlier application, subject to change in fact situation and the law. In support of his view learned Judge relied upon the limited area carved out by the Apex Court in the case of Kalyan Chandra Sarakar Kalyan Chandra Sarakar Kalyan Chandra Sarakar - 5 - (supra) quoted above. The same view was taken by another single Judge of this Court (Shri Bhosle, J.) in the case of Laxman Irappa Hatti v. State of Laxman Irappa Hatti v. State of Laxman Irappa Hatti v. State of Maharashtra Maharashtra Maharashtra, 2004 All MR (Cri) 3073. 7. In case of Ganesh Sukhanda Mhastke v. State Ganesh Sukhanda Mhastke v. State Ganesh Sukhanda Mhastke v. State of Maharashtra of Maharashtra of Maharashtra, 2006 All MR (Cri) 450, learned single Judge (Shri Joshi, J.) has refused to permit the applicant to withdraw application for bail when the prayer for withdrawal was made by the advocate noticing that the Court was not convinced in favour of granting application. The permission was refused observing that the applicant would be entitled in law to apply for bail on new grounds. 8. All the above judgments, referred to hereinabove, on which strong reliance is placed by the leaned counsel for the applicant do not support the view canvassed by him. 9. In the case of Munna Singh Tomar v. State of Munna Singh Tomar v. State of Munna Singh Tomar v. State of M.P. M.P. M.P., 1990 Cri.L.J. 49 (MP), explaining the judgment of the Apex Court in the case of Shahzad Hasan Khan v. Shahzad Hasan Khan v. Shahzad Hasan Khan v. Ishtiaq Ishtiaq Ishtiaq, AIR 1987 SC 1613, the Madhya Pradesh High Court ruled that even if the earlier bail application - 6 - had been dismissed as withdrawn or not pressed, by any single Judge of the High Court as a vacation Judge sitting during High Court vacation or otherwise to hear or dispose of the bail applications, either at the stage of motion hearing or otherwise, the subsequent bail application of the same applicant should be placed before the same Judge who had rejected the earlier bail application, so long he is available. The foundation of this view appears to be to prevent forum shopping, abuse of process of Court in as much as impression is not created that the litigant is shunning or selecting a Court depending on whether the Court is to his liking or not. If the successive bail applications on the same subject and prayer are permitted to be disposed of by different Judges, then there would be conflicting orders and the litigant would be pestering every Judge till he gets a favourable order. The same observation holds good even if the applications are allowed to be withdrawn on the prayer made by the applicant finding that the Court is not convinced in favour of granting application. 10. The Apex Court in State of Maharashtra v. State of Maharashtra v. State of Maharashtra v. Captain Buddhikant Subba Rao Captain Buddhikant Subba Rao Captain Buddhikant Subba Rao, AIR 1989 SC 2292, - 7 - unequivocally, ruled that successive bail applications in absence of change of circumstances, after rejection of earlier bail application are not maintainable. In that particular case, the bail order on last application was held to be bad and illegal. Although, technically, there is no bar of res judicata, the successive bail applications should not be encouraged unless some change in fact situation is successfully made out. 11. In the case of Baikunthanath Dalia v. Baikunthanath Dalia v. Baikunthanath Dalia v. Digambar Jena Digambar Jena Digambar Jena, 1991 Cri.L.J. 203 (Ori.), it is held that where the Court had entertained and allowed successive applications for bail without indicating any material change in circumstances, and had passed apparently contradictory orders within a fairly short span of time and had also tried to sift the material with a view to ascertain the merits of the prosecution case against the accused, bail granted to the accused could be cancelled under section 439(2). Thus, in the ultimate analysis, where the earlier application was rejected or withdrawn, it is not open for the applicant to apply for bail afresh unless there is change in fact situation or law warranting fresh consideration. - 8 - 12. In order to implement above rule, if successive bail applications are made, the applicant should mention therein all earlier bail applications made by him and should attach copies of order or orders refusing to grant bail or allowing to withdraw the applications. In other words, in every successive bail application moved by the applicant, the applicant must refer to the earlier bail application and its fate. If, in subsequent bail application, the earlier bail application and its refusal or withdrawal is suppressed, it may entail the cancellation of bail on the suppression of material facts with heavy costs. 13. In the result, all these three applications are rejected. JUDGE JUDGE JUDGE