9911796707
TMI Blog2011 (9) TMI 1257X X X X Extracts X X X X X X X X Extracts X X X X ..... and submitted that originally an FIR was filed by the ATS being C.R. No. I-5/2005. He submitted that the charge sheet was filed and the applicant was shown as an original witness. However, the co-accused filed an application before the High Court being Criminal Reference No. 1 of 2008 in which the applicant has been arraigned as an accused as per the order passed therein. He submitted that thereafter the order passed in the Reference by the High Court was challenged before the Hon'ble Apex Court by way of SLP (Cri.) No. 3446 of 2008 and he pointedly referred to the order passed by the Hon'ble Apex Court which is produced at Annexure-B, p. 55/56, and submitted that it was withdrawn with a liberty to the Petitioner to apply for bail before the appropriate court and that is how he had applied for bail before the Sessions Court by way of Criminal Misc. Application No. 209 of 2010, which came to be rejected vide order dated 18.11.2011 by the learned Special Judge-CBI, Ahmedabad, and therefore the present application has been filed. 4. Learned advocate Mr. Juneja referred to the impugned order passed by the learned Special Judge-CBI referring to the observations made by the Hon&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of Gujarat, referring to the observations made in para 5, that it may not be punitive, and as now the investigation is over and the chargesheet is filed, in any case the applicant accused may be released on bail. He therefore submitted that the present application may be allowed. 6. Learned advocate Mr. Juneja has also submitted written submissions though he was heard at length and the submissions have been taken on record which have been dealt with. 7. Learned Counsel Mr. YN Ravani appearing for Respondent No. 1-CBI has referred to the papers and submitted that as per the direction of the Hon'ble Apex Court, the investigation was handed over to the CBI and the status report has been filed by the CBI and the first report is filed on 23.7.2010. He further submitted that some of the persons are not found involved in the investigation made by the CBI which includes the present applicant-accused and it has been the findings of the CBI that the applicant-accused was not having any knowledge of the conspiracy as there was no meeting of mind with the conspirators. He has also submitted, in response to a query by the court, that the CBI has no other material when it was specifically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rima facie case against the applicant accused, Criminal Misc. Application No. 8326 of 2009 was rejected and the said application was made subsequent to the order passed by the Hon'ble Apex Court in SLP (Cri.) No. 3446 and 3766 of 2008 of 2008 which was filed challenging the order passed by the High Court in Criminal Reference No. 1 of 2008. The order of the Hon'ble Apex Court which has been referred to by learned advocate Mr. Juneja has been quoted in that earlier order passed in Criminal Misc. Application No. 8326 of 2009 by which liberty has been reserved and it is in light of such liberty earlier Criminal Misc. Application No. 8326 of 2009 was filed which was rejected after considering the submissions. 13. Therefore, the submissions and the details as to how the applicant who was an original witness has been arraigned subsequently as per the order passed by the High Court in Criminal Reference No. 1/2008 has also been considered even while rejecting the earlier application for bail. It is also required to be mentioned that the order passed by the High Court in Criminal Reference No. 1/2008 has been carried further before the Hon'ble Apex Court by way of SLP (Cri.) No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the role also and therefore whether his role is different from that of the other co-accused, and whether he stands on a better footing than the other co-accused is a matter of scrutiny and appreciation of evidence. It therefore only reflects on the manner and method of investigation, to say the least, and no further comment is required to be made since the matter is before the Hon'ble Apex Court for approval of the Status Report of the CBI also. 16. Therefore, for the purpose of deciding this bail application, the court is required to consider the relevant aspects like change in the material fact-situation for deciding the successive bail application. The Hon'ble Apex Court in a judgment in the case of State of Maharashtra v. Captain Buddhikota Subha Rao, reported in AIR 1989 SC 2292, has observed that mere cosmetic change would not be sufficient and there has to be material change in the circumstances. 17. Therefore, there has to be a material change in the fact-situation which is not pointed out except the remarks in the chargesheet by the CBI as discussed could not have been made and it should have been left to the competent court by making necessary report or appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of offence. It is in these circumstances the applicant accused cannot claim any parity with the aforesaid other two co-accused. 20. Moreover, as discussed above, the order of the High Court, by which the applicant has been arraigned as an accused, has in fact merged with the order of the Hon'ble Apex Court. The Hon'ble Apex Court, dismissing the SLP, has merely granted permission to move an application for bail, which itself would imply that any such prayer was not acceded. In these circumstances, when the applicant accused has been arraigned as an accused by the order of the High Court which has been carried before the Hon'ble Apex Court, and the Hon'ble Apex Court has also not entertained the SLP, the submissions made by learned advocate Mr. Juneja cannot be accepted as the order of this Court passed in Criminal Reference No. 1 of 2008 has merged with the order of the Hon'ble Apex Court and, therefore, this Court cannot have the jurisdiction to take a different view in the matter once the Hon'ble Apex Court has not granted any such relief to the present applicant-accused. 21. Another facet of the argument that he has been in jail for a long period and even ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
