Allowed

Pranav Gahlot Alias Pranav Kumar Gahlot v. The State Of Jharkhand

Jharkhand HC7 Apr 2017A.B.A./1464/2017

Case brief

AI extract

What is this about?

Petitioner challenged an earlier bail dismissal after his SLP to the Supreme Court was dismissed without reasons. Court held no merger applied, noted material change due to hostile witnesses, and granted anticipatory bail subject to hefty costs and probation.

What did the court decide?

Petitioner admitted on anticipatory bail subject to payment of exemplary cost of Rs. 2,51,000/-. Surrender within four weeks, cooperation with investigation, and 72 hours notice conditions imposed.

Pranav Gahlot Alias Pranav Kumar Gahlot Vs The State Of… — Anticipatory Bail | Jharkhand HC (2017)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI A.B.A. No. 1464 of 2017

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Pranav Gahlot @ Pranav Kumar Gahlot ….. Petitioner Versus The State of Jharkhand ….. Opp. Party

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--------CORAM: HON'BLE MR. JUSTICE ANANT BIJAY SINGH --------- For the Petitioner : Mrs. J. Mazumdar, Advocate. For the State : A.P.P.

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Reserved on: 04.04.2017 Pronounced on : 07.04.2017

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Petitioner is apprehending his arrest in connection with Chirkunda (Maithan) P.S. Case No. 53 of 2015, corresponding to G.R. No. 654 of 2015, registered under Sections 420, 384, 34 of the I.P.C., lodged on the basis of one written report given by one Arbind Kumar alleging that under orders of Deputy Commissioner, Dhanbad, he along with other special officers conducted raid upon the check post of Transport Department at Maithan and found three persons issuing receipts who disclosed their names as Pramod Kumar, Pankaj Singh and Sagar Keshri and they have issued 16 receipts, although they were not employees of Government and they further disclosed that at the instance of Pranav Kumar Gahlot (petitioner), they are issuing the receipts and Rs. 93,800/- was recovered from their possession . It is further alleged that the petitioner at that point of time was posted as Transport Enforcement Officer at the Check Post.

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It is relevant to note that petitioner had earlier moved before this Court for grant of anticipatory bail in A.B.A. No. 1183 of 2015, which was dismissed by this Court under order dated 22.07.2015. Thereafter, he had moved before the Hon'ble Supreme Court in Special Leave Appeal (Crl.) No. 6660 of 2015, which was also dismissed on 22.08.2016 and again he had preferred A.B.A. No. 4034 of 2016, which was dismissed by this Court under order dated 06.12.2016, as the process under Section 82 of the Cr.P.C. was issued against him by the court below, against which petitioner had preferred Cr.M.P. No. 79 of 2017, which was allowed by a Coordinate Bench of this Court and thereafter, this fresh anticipatory bail application has been filed.

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Learned counsel for the petitioner has categorically submitted that the Special Leave Appeal (Crl.) was dismissed by the Hon'ble Supreme Court without assigning any reasons, so rejection of the anticipatory bail application by order dated 22.07.2015 passed in A.B.A. No. 1183 of 2015 cannot be said to have been merged with the order of Hon'ble Supreme Court and the instant anticipatory bail application has been filed as the witnesses have been declared hostile in a separate trial in which some of the coaccused are being tried. Learned counsel for the petitioner has submitted that in view of this new fact, this anticipatory bail application is maintainable.

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Learned counsel for the petitioner has relied on the judgment dated 16.09.2016 of Hon'ble Division Bench of Patna High Court passed in Civil Review No. 4 of 2016 in M.A. No. 513 of 2009, wherein the Hon'ble Patna High Court has framed a categorical question as to whether civil review is maintainable after SLP was dismissed by Hon'ble Supreme Court of India. Hon'ble Patna High Court has relied on the judgment of Hon'ble Supreme Court passed in the case of Kunhayammed Vs. State of Kerala, reported in 2000 (6) SCC 359, wherein the doctrine of merger has been explained in paragraph-44, which reads as under:

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“44. To sum up, our conclusions are : (i) Where an appeal or revision is provided against an decree passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of the law.

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(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. The first stage is up to the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal.

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(iii) The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior

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forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the decree put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or decree appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter."

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There does exist a distinction between an appeal and a leave to apply for appeal. When an appeal is provided and the appeal is preferred, the appeal stands instituted; but when a leave for appeal is applied, then, until the leave is, in such a situation, granted, there is really no Patna High Court C. REV. No.4 of 2016 dt.16 -09-2016 appeal. Hence, the disposal of the Special Leave Petition or of any petition for leave to appeal does not subsume the order from which the appeal arose, for, with the rejection of the petition for leave, no appeal survived. Article 136 of the Constitution of India deals with 'special leave to appeal', which may be granted by the Supreme Court. When special leave to appeal is dismissed/disallowed by the Supreme Court with or without a speaking order, the order from which the appeal arose does not merge into such an order, for, as already indicated hereinabove, with the dismissal of the Special Leave Petition, no appeal survives and no appeal can be said to have been borne and considered. In fact, when the special leave to appeal is declined, there is no appeal. Hence, question of the merger of the order into the order declining to grant special leave to appeal would not, in the light of Kunhayammed (supra), arise at all.

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In the light of what have been held in Kunhayammed (supra), the principles laid down there being three Judge Bench is still binding on us inasmuch as the reference, made to a larger Bench by the order passed by the three Judge Bench in Khoday Distilleries Ltd. (supra), has not laid down any law, as indicated above, and only referred the matter to a larger Bench. The decision, in Meghmala (supra), being a two Judge Bench, we are presently bound by the decision in Kunhayammed (supra), which lays down that Patna High Court C. REV. No.4 of 2016 dated 16 -09-2016 if a Special Leave Petition is dismissed in limine without the appeal having came into existence, because of the leave having been declined, the doctrine of merger will not apply and, therefore, a petition for review of the order of the High Court remains open.

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Situated thus, we are clearly of the view that in the light of the decision in Kunhayammed (supra), this Court does have the

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power to review if a case for review is made out.

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Further, learned counsel for the petitioner also relied upon the judgment of Hon'ble Supreme Court reported in the case of Kalyan Chandra Sarkar V. Rajesh Ranjan @ Pappu Yadav & Anr. reported in (2005) 2 SCC 42, wherein it has been held that second bail application is maintainable:-

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“C. Criminal Procedure Code, 1973 – Ss. 437, 439, 300 and Chs. 29 (Ss.372 to 394) and 30 (Ss. 395 to 405) – Successive bail applications – When maintainable – Material change in fact or law – Findings of higher court or coordinate Bench – Binding effect of – Res judicata – Applicability – Held, though principles of res jusdicata and principles analogous thereto are not applicable in criminal proceedings, still the courts are bound by doctrine of judicial discipline, having regard to the hierarchical system prevailing in the country – Findings of a higher court or coordinate Bench must receive serious consideration at hands of court entertaining a bail application at a later stage when same had been rejected earlier – Due weight to be given to grounds which weighed with former or higher court in rejecting bail application – Further held, ordinarily, issues which had been canvassed earlier would not be permitted to be reagitated on the same grounds, as the same would lead to speculation and uncertainty in the administration of justice and may lead to forum hunting – Only exception is if there has been a material change in the fact situation or in law which requires the earlier view being interfered with or has rendered the earlier finding obsolete.”

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Learned APP has opposed the prayer for anticipatory bail, but when he was asked to address this Court about the rulings relied upon by the learned counsel for the petitioner about the maintainability of the bail application after dismissal of the SLP by a non-speaking order, he conceded the submissions of the learned counsel for the petitioner, but he submitted that in the facts and circumstances as the petitioner was Enforcement Officer posted at the relevant time and by authorizing, he was realizing money from passenger vehicles at Maithan Check Post causing loss of revenue to the Government, he does

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deserve the privilege of anticipatory bail.

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Learned counsel for the petitioner on the other hand submitted that three witnesses during trial have been examined and they have been declared hostile and have not supported the case of prosecution and the petitioner is still ready to face trial. Considering this material fact, there is little chance that prosecution would be able to progress in this case. Further, in support of the contentions of the petitioner, the learned counsel for the petitioner has also annexed the deposition of the witnesses vide Annexure-8 of the bail application, where in G.R. No. 650 of 2015 (State V. Pramod Kumar & Ors.), P.W. - 1 Jugal Sharma, P.W. - 2 Sanjay Rauat and P.W.-3 Jyoti Kumar have been examined till 11.12.2015, but all were declared hostile.

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After hearing learned counsel for the parties and after going through the judgments relied upon by the petitioner and also the order passed in SLP by a nonspeaking order and in view of the judgment of Hon'ble Patna High Court, the rejection order of anticipatory bail cannot be said to have been merged with the order of the SLP. Taking this fact and also the ratio of the judgment of Kalyan Chandra Sarkar (Supra) on new facts and witnesses who have been examined during trial have not supported the case of the prosecution, this second anticipatory bail application is maintainable. Further, it appears that although the case was instituted in 10.02.2015, more than two years have passed and investigation is still pending.

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Be that as it may, I am inclined to admit the petitioner on anticipatory bail, but with imposition of exemplary cost of Rs. 2,51,000/- upon the petitioner. The above named petitioner is directed to surrender in the Court below within four weeks from the date of this order and in the event of his arrest or surrender, the Court below shall enlarge the above named petitioner on bail on furnishing bail bond of Rs. 15,000/- (Rupees fifteen thousand) with two sureties of the like amount each to the satisfaction of Chief Judicial Magistrate, Dhanbad, in connection with

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Chirkunda (Maithan) P.S. Case No. 53 of 2015, corresponding to G.R. No. 654 of 2015, subject to the conditions as laid down under Section 438(2) of the Cr.P.C. and also on the condition that one of the bailors shall be the resident of Dhanbad district, solvent person and also on the following conditions:-

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(i) Petitioner shall deposit Rs. 2,51,000/- before the Secretary General, Jharkhand High Court Advocates' Association within two weeks and the Secretary General will issue receipt to the petitioner and thereafter the petitioner will surrender in the court below and file receipt on the date of surrender.

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(ii) Further, petitioner will file undertaking that he will cooperate in the investigation and whenever the I.O. will direct the petitioner, he will physically remain present before the I.O.

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(iii) The I.O. will give 72 hours' notice fixing date, time and place and petitioner will appear and co-operate in the investigation. If he fails to do so, it is open for the I.O. to file an application through learned APP for cancellation of bail of the petitioner.

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Let a copy of order be sent to the court below and also to the Secretary General, Jharkhand High Court Advocates' Association, Ranchi and a copy be also handed over to learned APP for transmission to the I.O.

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(Anant Bijay Singh, J.)

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Sunil/

Pranav Gahlot Alias Pranav Kumar Gahlot v. The State Of Jharkhand

Case brief

What is this about?

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Pranav Gahlot Alias Pranav Kumar Gahlot v. The State Of Jharkhand

Case brief

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