SUKAR NARAN BAKHIA Vs. R P SHAH

JUDGEMENT

(1.) The present petitioner has filed this application for enlarging him on he bail the pendency of the trial. The petitioner had filed several similar applications for Bail before this Court which have been rejected after considering all the facts and circumstances of the case. The first point urged be Mr. H. 14. Advani. the learned Counsel for the petitioner is that it is open to the accused person to file successive applications for bail one after the other on the same facts and circumstances and that each application has to he heard on merits irrespective of the result of the previous application. This contention of Mr. Advani is contested by Mr. H. M. Mehta the learned Counsel for the respondent No. 1 stating that while it is open to the petitioner to file successive applications for granting of hail. according to him. normally the court would not entertain a subsequent application unless the petitioner points out and new facts and circumstances that may have come into existence after the rejection of the prior application. Mr. Mehta has urged that earlier applications of the petitioner were fully considered by different Judges of this Court and have been rejected on merits after fully considering all the arguments advanced on behalf of the petitioner. Mr. Advani has urged that it is not necessary that there must he some new facts or circumstances which may have come into existence after the disposal of the previous bail application. On those very facts and circumstances the petitioner can come again to the Court and seek bail. According to Mr. Advani if the accused person may have failed to persuade one Judge. on that very facts and circumstances of the case he may succeed in convincing another Judge on the very facts and circumstances and if the Court is convinced that this is a fit case where the accused should be enlarged on Bail the Court may do so unhampered by the previous decisions rejecting the-bail applications. This contention of Mr. Advani must be upheld. It is the well established principle that every court has to take its own decision on the Bail application before it. No Court is bound by the decision of another Court rejecting the bail application of an accused person. While hearing the bail application a Court may come to one conclusion but another Court on the same facts and in the same circumstances may arrive at a different conclusion while disposing of the-application of the same accused. There is no principle analogous to res judicata applicable to bail applications by an accused. Normally different Courts may come to the same conclusion on the same facts and in the same circumstances hut they are not bound to do so. After all the granting of bail is a discretionary relief though the discretion is a judicial one.

(2.) Mr. Advani has further argued that in this case as a matter of fact. there is some further development after the previous orders were passed by the other Court rejecting the bail applications of the present petitioner. That circumstance according to Mr. Advani is that. now the actual trial has commenced which was not the case then the previous bail applications were considered be the other Courts. According to Mr. Advani now the trial having commenced after a prolonged delay of several years the chances are that it would conclude reasonably soon and that there is no reason why the present petitioner should continue in detention for any further period in view of the fact that already he has been under incarceration for about 20 months. Mr. Mehta has urged that it the petitioner is enlarged on bail there is a reasonable possibility that the trial will be delayed and thAt the present petitioner will try to put impediments in the progress of the prosecution by himself or through some of the other accused over whom he has control or influence. According to Mr. Mehta the long delay in the commencement of the hearing of this case has been mainly due to the present petitioner. He therefore. submits that the trial can proceed in the normal course and come to an early end only if the petitioners application for bail is rejected. According to him granting the petitioners application for bail would almost certainly result in indefinite prolonging the proceedings. This case has a very peculiar history of its own. Its progress has been as tarry as it could be. Hence is not possible to say that the proceedings will terminate reasonably soon and therefore in the interest of justice the trial must proceed as expeditiously as possible. There appears to be a reasonable apprehension that enlarging the petitioner on bail would result in the smooth progress of the case the present hail application therefore deserves to be rejected.

(3.) The next argument advanced by Mr. Advani on behalf of the petitioner is that while considering the question of granting Bail the Court would consider the gravity of the charge the likely sentence that may be imposed in the event of conviction and the possibility of the accused jumping the bail. According to him the petitioner is charged with offences which carry the maximum punishment of 7 Years R. I. but according to him in the present case the likely sentence would be much less because in the case of other accused who have pleaded guilty in this case have been given very light sentences. According to him three accused are given one days imprisonment each one accused is given 11 months R.I. He therefore submits that it would be reasonable to expect that the present accused may be given R.I. for a couple of years or so. According to him the present applicant having already been in custody for about 20 months as under-trial prisoner he may not have to serve his sentence for very long. Hence Mr. Advani argued that there would be no inducement for the present applicant to abscond. This argument of Mr. Advani is met by Mr. H. M. Mehta by stating that the present applicant is involved in several cases of similar offences and hence his sentence may be for a longer duration even if all the sentences passed against him are ordered to run concurrently. Moreover Mr. Mehta has urged that among those co-accused who have pleaded guilty some are minor students. Hence they are awarded only nominal sentence. Therefore according to Mr. Mehta. the case of the present applicant stands on a different footing. In the facts an circumstances of this case it is difficult to say as to what would be the length of the sentence that may be imposed. Hence the argument of Mr. Advani that in view of short period of sentence that the applicant may have now to undergo would not be a sufficient inducement for the applicant to abscond must be rejected.