Case Note & Summary
The appellant, original accused no. 11, was facing trial in POTA Special Case No. 2 of 2003 before the Special Judge under POTA. He filed a bail application which was rejected by the trial court. He filed Criminal Appeal No. 99 of 2005 before the High Court, which was withdrawn and disposed of as 'Allowed to be withdrawn.' Subsequently, he filed a second bail application before the Special Judge, which was summarily rejected on the ground that the earlier application was rejected on merits and the appeal was withdrawn without liberty to file a fresh application. The High Court, in appeal, found that the Special Judge had not applied his mind to the merits of the second bail application and had rejected it solely on the ground of judicial discipline. The High Court held that the Special Judge ought to have considered whether there was any change in circumstances since the rejection of the earlier application. The court set aside the impugned order and directed the Special Judge to decide the bail application afresh on merits, preferably within two weeks. The appeal was allowed.
Headnote
A) Criminal Procedure - Bail - Rejection of Bail Application - Summary Rejection - The Special Judge summarily rejected the second bail application on the ground that the earlier application was rejected and the appeal was withdrawn without liberty to file a fresh application - The High Court held that the Special Judge must consider the merits of the bail application and cannot reject it solely on the basis of judicial discipline without examining change in circumstances - Held that the order was passed without application of mind (Paras 3-4).
Issue of Consideration
Whether the Special Judge was justified in rejecting the second bail application summarily on the ground that the earlier bail application was rejected and the appeal against it was withdrawn without liberty to file a fresh application.
Final Decision
The High Court allowed the appeal, set aside the impugned order dated 25th July, 2005, and directed the Special Judge to decide the bail application afresh on merits, preferably within two weeks from the date of the order.
Law Points
- Bail application cannot be rejected summarily on ground of earlier rejection without considering change in circumstances
- Withdrawal of appeal does not bar fresh bail application if no liberty reserved
- Special Judge must apply mind to merits of bail application
Case Details
Criminal Appeal No. 847 of 2005
J.N. Patel, Smt. Roshan Dalvi
Mr. S.R. Chitnis, Sr. Counsel with Mr. Sharif Shaikh for Appellant; Mr. S.R. Borulkar, P.P. with Mr. D.S. Mhaispurkar, APP., for State
Arif Hussain Sabir Hussain @ Pann Wala
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Nature of Litigation
Criminal appeal against rejection of bail application
Remedy Sought
Appellant sought bail in POTA Special Case No. 2 of 2003
Filing Reason
Appellant's second bail application was summarily rejected by the Special Judge on the ground that earlier bail application was rejected and appeal withdrawn without liberty to file fresh application
Previous Decisions
Earlier bail application (Bail Application No. 17 of 2004) was rejected by trial court; Criminal Appeal No. 99 of 2005 against that rejection was withdrawn and disposed of as 'Allowed to be withdrawn'
Issues
Whether the Special Judge was justified in rejecting the second bail application summarily without considering merits or change in circumstances
Submissions/Arguments
Appellant argued that the Special Judge summarily rejected the bail application without applying mind to merits
Respondent/State argued that the earlier rejection and withdrawal of appeal without liberty barred fresh application
Ratio Decidendi
A bail application cannot be rejected summarily on the ground of earlier rejection and withdrawal of appeal without liberty to file fresh application; the court must consider the merits and any change in circumstances.
Judgment Excerpts
After taking into consideration the impugned order we are of the view that the Special Judge has summarily rejected the second application for bail on the ground that the earlier Application being Bail Application NO. 17 of 2004 filed by the appellant was rejected by the trial Court against which Criminal Appeal No. 99 of 2005 was filed before this Court which came to be withdrawn and the Court disposed of the appeal by passing the following order :- 'Allowed to be withdrawn.'
The Special Judge also found that as there was no liberty granted to the applicant to file fresh application in any court, it would be not proper for judicial discipline to entertain the bail application.
Procedural History
The appellant filed a bail application which was rejected by the Special Judge. He filed Criminal Appeal No. 99 of 2005 before the High Court, which was withdrawn and disposed of as 'Allowed to be withdrawn.' He then filed a second bail application before the Special Judge, which was summarily rejected on 25th July, 2005. The appellant filed the present Criminal Appeal No. 847 of 2005 against that order.
Acts & Sections
- Prevention of Terrorism Act, 2002 (POTA):
