Wednesday, 6 February 2019

Whether subsequent bail application on grounds which were available at time of previous application is maintainable?

 It is thus well settled principle of law that successive bail
application can be entertained only when there is substantive change in
fact situation or circumstances during the period between the two
applications. The embargo on filing repeated bail applications on the
same facts is to ensure some degree of finality to the order passed and
to maintain judicial discipline and propriety.
12. The present application is not filed on the ground of change in
circumstance but bail is sought on grounds, which were already
available at the time of filing of the previous bail application. Such
application would not be maintainable as it would virtually amount to
review of the previous order.
13. It has to be borne in mind that when the Court decides the bail
application, it is deemed to have gone through the records and
considered all the relevant aspects of the case. Furthermore, the Court
deciding the bail application is not required to give elaborate reasons.
The only requirement is that the order should be reasoned order.

Hence, the mere fact that some of the grounds which were available
were not raised in the previous application or that the said grounds are
not reflected in the previous order would not justify entertaining
subsequent bail application. Suffice it to say that entertaining repeated
prayers for bail on grounds which were already available or allowing
another counsel to advance fresh arguments on the same facts would
be against judicial discipline and propriety and will encourage abuse of
process of law. Hence, we are not inclined to reconsider
the merits of
the matter.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.1301 OF 2018
IN
CRIMINAL APPEAL NO.1155 OF 2015

Ashok Pundalik Gavade Vs The State of Maharashtra 

CORAM: SMT. SADHANA S. JADHAV, AND
SMT. ANUJA PRABHUDESSAI, JJ.

Dated : 30th JANUARY, 2019.

JUDGMENT (PER SMT. ANUJA PRABHUDESSAI. J.) :

This is the third application filed by the aforesaid Applicant, who
has been convicted in Sessions Case No.11/2014 for offence under
Section 302 r/w. 34 of the IPC, for suspension of sentence and his
release on bail.
2. The applicant was charged with an offence of murder of one
Gurunath who was employed as a waiter in a hotel at Chandgad. The

case of the prosecution is that on 05.02.2014 while the deceased was
serving the applicant and his friend, some water spilled on the table.
The altercation between the applicant and the deceased resulted in a
quarrel. It is alleged that the applicant threatened to cause death of
Gurunath and some of the persons present in the hotel intervened and
took said Gurunath into a room. Later on seeing Gurunath proceeding
towards the police station to lodge a complaint, the applicant took a
bamboo stick from his car and followed him. It is alleged that the
applicant inflicted a blow of bamboo stick on his head resulting in head
injury as a result, he was shifted to the hospital but succumbed to the
injuries on 08.02.2014.
3. The post mortem report indicates that the deceased had suffered
a fracture of right parietal bone extending across right temporal bone
and into right side middle cranial fossa. There was laceration of
membrane beneath the fractures. Subdural and subarachnoid
hemorrhage present over left tempero parieto occipital region and
basitemporal region.
4. Upon considering the oral evidence as well as the nature of the
injuries, the learned Sessions Judge held the applicant guilty of offence

under Section 302 of the IPC. The applicant and the coaccused
had
filed a Bail Application No.1563/2015. The said bail application was
not pressed as far as the applicant is concerned and was dismissed with
liberty to file fresh bail application at a later stage. The coaccused
was
granted bail as prima facie he was not involved in inflicting the fatal
injury.
5. The applicant filed a second bail application being Criminal Bail
Application No.489/2016. The second bail application was dismissed
on merits, by order dated 20/04/2016. The applicant has filed yet
another application i.e. the third application seeking suspension of
sentence and his release on bail, pending the appeal.
6. Mr. Umesh Mankapure, the learned counsel for the applicant has
tried to pursuade us to consider the merits of the case. He has urged
that there are several contradictions and omissions in the evidence of
the first informant. He has tried to assail the veracity of the
prosecution case and has questioned the conviction under Section 302
of the IPC when the accusation against the applicant that he had
inflicted a single blow without any premedication.
He submits that
the deceased had expired three days after the incident and in the facts

and circumstances, section 302 of the IPC is not attracted. He contends
that since these submissions were neither urged nor considered in the
previous application, the present application is maintainable. He
further contends that considering the large pendency of the appeals
before this Court, there is no possibility of the appeal being taken up in
near future. He has relied upon the decision of the Apex Court in Babu
Singh and Ors. v/s. The State of U.P. (AIR 1978 SC 527).
7. Mr. H.J. Dhedia, the learned APP submits that the previous bail
application having been dismissed on merits, it is not open to the
learned counsel for petitioner to make submissions on the facts which
were already available. He submits that there is no change in
circumstance to entertain the present bail application. He further
contends that the offence is of serious nature and hence, the applicant
would not be entitled for bail merely because he is in custody since last
four years.
8. We have perused the records and considered the arguments
advanced by the learned counsel for the respective parties.

9. In the case of Babu Singh (supra), all the accused persons were
acquitted by the Sessions Court. The acquittal was reversed by the High
Court and they were sentenced to undergo life imprisonment. The reversal
of acquittal into conviction was challenged before the Apex
Court. While entertaining the second bail application, the Apex Court
observed that "an order refusing an application for bail does not necessarily
preclude another on a latter occasion giving more materials, further
developments and different considerations. While the Court should set
store by the circumstance that the bail application was once rejected it
cannot be said that the Court is barred from second consideration at a
later stage."
10. The proposition that subsequent bail application is maintainable
on fresh grounds, facts and circumstances that may develop after dismissal
of the previous bail application has been reiterated by the Apex
Court in State of Maharashtra v/s. Buddhikota Subha Rao [AIR
1989 SC 2292]. The Apex Court has observed that " once that application
is rejected, there is no question of granting a similar prayer. That is
virtually overruling the earlier decision without there being a change in
the factsituation.
And, when we speak of change, we mean a substantial

one which has a direct impact on the earlier decision and not merely cosmetic
changes which are of little or no consequence".
11. It is thus well settled principle of law that successive bail
application can be entertained only when there is substantive change in
fact situation or circumstances during the period between the two
applications. The embargo on filing repeated bail applications on the
same facts is to ensure some degree of finality to the order passed and
to maintain judicial discipline and propriety.
12. The present application is not filed on the ground of change in
circumstance but bail is sought on grounds, which were already
available at the time of filing of the previous bail application. Such
application would not be maintainable as it would virtually amount to
review of the previous order.
13. It has to be borne in mind that when the Court decides the bail
application, it is deemed to have gone through the records and
considered all the relevant aspects of the case. Furthermore, the Court
deciding the bail application is not required to give elaborate reasons.
The only requirement is that the order should be reasoned order.

Hence, the mere fact that some of the grounds which were available
were not raised in the previous application or that the said grounds are
not reflected in the previous order would not justify entertaining
subsequent bail application. Suffice it to say that entertaining repeated
prayers for bail on grounds which were already available or allowing
another counsel to advance fresh arguments on the same facts would
be against judicial discipline and propriety and will encourage abuse of
process of law. Hence, we are not inclined to reconsider
the merits of
the matter.
14. We are also of considered view that the applicant cannot be
released on bail solely on the ground of staggering pendency of the
appeals and the period of detention undergone by the applicant.
Hence, the application is dismissed. However, considering the fact that
the applicant is in custody since the year 2014, the hearing of the
appeal is expedited. Let the paper book be prepared within two
months and thereafter appeal be listed for hearing before the
appropriate bench.
(ANUJA PRABHUDESSAI, J.) (SADHANA S. JADHAV, J.)

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