Khangaram @ Ramesh Prabhuji Purohit Vs the State of Maharashtra

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.729 OF 2006

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 Khangaram @ Ramesh
 Prabhuji Pujari and others

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...Applicants

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vs.

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The State of Maharashtra & Others...Respondents
Mr.Nitin Sejpal for the Applicant
 Ms M.M.Deshmukh, A.P.P. for State.

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CORAM: A.S.OKA, J.

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LAST DATE OF HEARING THE ARGUMENTS:30TH JUNE 2006
DATE OFPRONOUNCEMENT OF JUDGMENT: 21ST JULY 2006.

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JUDGMENT:

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 1. The earlier bail application filed by the Applicant was
 rejected by me. Therefore, by an administrative order dated
 23rd June 2006 passed by the Hon’ble the Chief Justice, this
 bail application has been assigned to me.

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 2. By an order dated 12th July 2005 Criminal Application
 No.4090 of 2005 made by the present Applicant was rejected by
 me. While rejecting the Application, I referred to the order
 dated 4th May 2005 passed by this Court on a bail application
 made by a co-accused by which the trial was expedited. While
 rejecting the application I have made following observations
 in paragraph No.6:

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 "6.Considering all these aspects of the matter, no case

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is made out for grant of bail. The application is
rejected. As directed by this Court, the learned
Trial Judge will ensure expeditious disposal of the

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trial by treating it as High Court expedited case.
If the trial is not concluded within a period of six
months due to any default on the part of the
prosecution, the Applicant will be entitled to apply
afresh for grant of bail."

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 2. A Special Leave Petition was filed for challenging the
 order passed on the earlier bail application. Special Leave
 Petition was disposed of by the Apex Court by passing the
 following order :

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 . " Heard learned Counsel for the parties.

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In view of the observation made in the concluding
portion of impugned order rendered by the High
Court, learned counsel for the petitioner is
permitted to withdraw this special leave petition.
The special leave petition is, accordingly, disposed
of."

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The present Application is filed on 17th February 2006.

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 3. The learned Counsel for the Applicant submitted that the
 trial has made no progress at all. He placed reliance on the
 xerox copy of the Roznama of the trial annexed to the bail
 application. He submitted that the prosecution intends to
 examine 80 witnesses and as of today only 10 witnesses have
 been examined. He submitted that there is no default on the
 part of the Applicant and only due to negligence on the part
 of the prosecution that the trial is being delayed. He

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submitted that even on merits, there is absolutely no case
 made out by the prosecution. He submitted that the trial is
 not likely to be concluded in near future. He submitted that
 for the offences for which the Applicant is being prosecuted,
 serious punishment is not prescribed. He submitted that the
 long delay in trial is itself a change in circumstance which
 is required to be considered in the second bail application.
 He submitted that the trial court has not abided by the two
 orders which are passed by this Court.

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 4. The learned A.P.P. did not dispute that the prosecution
 desires to examine total 80 witnesses and as of today only 10
 witnesses have been examined. The learned A.P.P. has
 invited my attention to the Rozanama of the proceedings and
 submitted that the delay is caused due to adjournments sought
 by the co-accused. The learned A.P.P. submitted that no
 case is made out of change in circumstances requiring the
 consideration of second bail application. The learned A.P.P.
 submitted that an endeavour will be by the prosecution for
 early conclusion of trial.

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 5. In the case of Kalyanchandra Sarkar Vs. Rajesh Ranjan @
 Pappu Yadav and another reported in (2004) 7 S.C.C. page 528
 (hereinafter referred to as the case of Kalyanchandra Sarkar
 I) the Apex Court held that the mere fact that the accused
 has undergone certain period in jail by itself would not
 entitle the accused to relief of bail nor the fact that the

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trial is not likely to be concluded in near future would be
 sufficient for enlarging the accused on bail, when the
 gravity of offence alleged is severe and there are
 allegations of tampering with the witnesses by the accused
 during the period on which he was on bail. In a later
 decision the Apex Court held that the said decision is
 rendered in the facts of the case.

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 6. On 4th May 2005 while rejecting the bail application
 filed by the co-accused, this Court observed that the trial
 shall be concluded expeditiously by treating the case as High
 Court expedited case. Thereafter, by subsequent order passed
 on 12th July 2005 while rejecting the first bail application
 filed by the Applicant this Court directed the trial court to
 ensure expeditious disposal and liberty was granted to the
 Applicant to apply afresh for grant of bail in case the trial
 is not concluded due to default on the part of the
 prosecution.

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 7. The Roznama of the proceedings is annexed to this
 application. The Roznama of the proceedings shows that on
 several dates some of the accused persons were not present
 and therefore the applications for exemption were made. On
 8th July 2005, recording of evidence of P.W.No.1 was started
 and thereafter cross examination was deferred for one or the
 another reason. On some dates, cross examination was
 deferred due to absence of co-accused. On 30th August 2005

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cross examination was adjourned as the learned Trial Judge
 was busy with some other case. on 1st September 2005, matter
 could not be proceeded as the learned Prosecutor was not
 present. On 6th September 2005 the learned Trial Judge was
 absent. On 6th October 2005, the learned Sessions Judge was
 not present. On various dates, the hearing was adjourned as
 accused persons either applied for exemption or for
 cancellation of warrant. On 27th October 2005 the evidence
 of P.W.No.2 was recorded. On 29th December 2005 recording of
 evidence of P.W.No.3 was started. As of today it is not
 disputed that out of 80 witnesses only 10 witnesses have been
 examined. The question before me is whether a case is made
 out for grant of bail on the ground of change in

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My attention has been invited to the case of
 Kalyanchandra Sarkar (I).In paragraph 14 the Apex Court has

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 "14...In such cases, in our opinion, the mere fact that

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the accused has undergone certain period of
incarceration (three years in this case) by itself
would not entitle the accused to being enlarged on
bail, nor the fact that the trial is not likely to
be concluded in the near future either by itself or
coupled with the period of incarceration would be
sufficient for enlarging the appellant on bail when

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the gravity of the offence alleged is severe and
there are allegations of tampering with the
witnesses by the accused during the period he was on
bail."

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9. My attention has also been invited to another decision of
 the Apex Court in case of Kalyanchandra Sarkar Vs. Rajesh
 Ranjan @ Pappu Yadav and another reported in 2005 S.C.C.
 (Cri.) page 489 [hereinafter referred to as Kalyanchandra
 Sarkar (II) ]. While dealing with the case of Kalyanchandra
 Sarkar (I), the Apex Court in paragraph 41 observed thus :

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 "41... This court in Kalyan Chandra Sarkar decided the

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said case on the facts of that case only, so the
question of the said case being overruled in another
case does not arise. It is clear from the perusal
of Jayendra Saraswathi case as well as Kalyan
Chandra Sarkar that both the cases have been decided
by this Court on their individual facts only."

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 10. Coming to the peculiar facts of the present case, it is
 obvious that the orders passed by this Court directing the
 expeditious conclusion of the trial are not yet given effect.
 In paragraph No. 10 of the Affidavit-in-reply filed by the
 Investigating Officer, it is stated as under :

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10. I say and submit that the trial of the case is at crucial case. I say that if present Applicant

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released on bail it is high possibility that he may
tamper and absconded and may not be available for
the trial which is in progress. I say that I am
filing this affidavit to oppose the present Criminal
Application and bail to present applicant who is
member of international Fake Currency racket, who
commissioned present crime in organized manner to
destabilize the Indian Economy."

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 11. Considering the peculiar facts of the case, at this
 stage, no case is made out for enlarging the Applicant on
 bail only on the ground that the trial will not be concluded
 in reasonable time. Though the trial may not have been
 delayed due to fault on the part of the Applicant, it cannot
 be said that there is negligence on the part of the
 prosecution. Delay has been occasioned as some of the

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 accused were absent and applications were made for exemption.
 In my view, prosecution deserves to be given one more
 opportunity to ensure that the trial is concluded within a
 reasonable time. The State has stated that the trial will be
 concluded within a period of 4 to 5 months.

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 12. Hence, I pass the following order :

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 i) Application is rejected. Trial court is directed to
 conclude the trial as expeditiously as possible and
 preferably on or before 23rd February 2007. If the trial is

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not concluded due to any reason before the said date, the
 Applicant will be at liberty to apply for grant of bail
 before the appropriate Sessions Court.

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Judge.

Khangaram @ Ramesh Prabhuji Purohit v. the State of Maharashtra

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Khangaram @ Ramesh Prabhuji Purohit v. the State of Maharashtra

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