Gujarat High Court
Mohammed Sajjad Mohammed Imtiyaz vs State Of Gujarat on 17 April, 2025
NEUTRAL CITATION
R/CR.MA/4659/2025 CAV JUDGMENT DATED: 17/04/2025
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Reserved On : 09/04/2025
Pronounced On : 17/04/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 4659 of 2025
(FOR SUCCESSIVE REGULAR BAIL - AFTER CHARGESHEET)
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
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Approved for Reporting Yes No
- √
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MOHAMMED SAJJAD MOHAMMED IMTIYAZ
Versus
STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1
MS SHRUTI PATHAK APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
CAV JUDGMENT
1. The present application, which is a successive
bail application preferred by the applicant after
the rejection of earlier bail application being
Criminal Misc. Application No.10666/2023 by an
order dated 19.12.2023, is filed under Section 439
of the Code of Criminal Procedure, 1973, for
regular bail in connection with the FIR being C.R.
No.7/2023 registered with the Anti Terrorist
Squad, Ahmedabad for the offence punishable under
Sections 121(a), 123, 465, 468, 471 and 120(B) of
the Indian Penal Code.
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2. Heard learned advocate, Mr. Ashish Dagli for the
applicant and learned APP Ms. Shruti Pathak for
the respondent – State of Gujarat.
3. Learned advocate, Mr. Dagli submitted that this is
a successive bail application preferred by the
applicant after the rejection of earlier bail
application being Criminal Misc. Application
No.10666/2023 by an order dated 19.12.2023. He has
drawn attention of this Court towards the order
dated 02.09.2024 passed by the Hon’ble Supreme
Court in Special Leave Petition (Crl.)
No.7816/2024 and submitted that against the
rejection of earlier bail application, the
applicant preferred said SLP, however at the time
of hearing of said petition, a statement was made
on behalf of the State that they intent to examine
not more than five more witnesses and endeavour
would be made to conclude the trial within a
period of six months and on the strength of the
said statement, the said SLP was not entertained,
however, liberty was reserved to file fresh bail
application before this Hon’ble Court if the trial
is not concluded within six months. He submitted
that in fact, more than six months have been
passed but trial has not concluded. He further
submitted that the applicant is in jail since his
arrest i.e. since 25.10.2021, therefore
considering the period of incarceration spent by
the applicant in jail, the case of the applicant
for the grant of bail may be considered.
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4. Learned advocate submitted that at the time of
submission of the chargesheet, the prosecution has
put reliance upon 33 witnesses, out of which,
maximum witnesses have been examined and at the
time of hearing of the SLP, only 5 witnesses were
required to be examined, therefore as stated
above, a statement was made on behalf of the State
that State intend to examine only five witnesses
and the trial would be concluded within six
months, however thereafter, the State preferred an
application under Section 311 of the CrPC to call
two persons as witnesses, which was allowed by the
court concerned but still, the State is of the
opinion that more than 10 witnesses are to be
examined, therefore, trial will take considerable
time to conclude. He further submitted that if the
details of remaining witnesses are seen, in that
event, it is found out that, those witnesses are
residing outside the State of Gujarat i.e.
Tripura, Bihar, Jammu & Kashmir etc. and the
concerned court has issued summons upon them,
which were duly served, however for the reasons
best known, they have chosen not to appear before
the court concerned, therefore, the trial is on
that stage, where the SLP was not entertained and
thus, there is no progress in the trial. In
support of the said submission, he has referred to
Rojkam of the trial court. He further submitted
that even otherwise also, on merit, the applicant
is having good case but as this is a successive
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bail application, he is not touching the merits of
the case.
5. Learned advocate, at this stage, has relied upon
the judgments of the Hon’ble Supreme Court as well
as other High Courts, copies of which are produced
on record from Page Nos.72 to 112 of the
compilation and submitted that in number of cases,
the Hon’ble Supreme Court has considered the
period of incarceration spent by the accused
concerned and released them on bail imposing
suitable conditions. Referring to the aforesaid
decisions, learned advocate submitted that the
case of the applicant is squarely covered by the
aforesaid decisions. It is submitted that if the
Hon’ble Court would make a cursory glance upon the
said decisions, in that event, it is found out
that it is well-established principle that “bail
is the rule and refusal is an exception”. It is,
therefore, urged that considering the facts of the
case as also considering the period of
incarceration, the applicant may be granted bail
by imposing suitable conditions.
6. On the other hand, learned APP has objected the
grant of present application looking to the nature
and gravity of the offence. It is submitted that
the role of the present applicant is clearly spelt
out from the body of the complaint as well as
papers of the chargesheet. Learned APP submitted
that the present application is a successive bail
application after the rejection of earlier bail
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application and the said order has been upheld by
the Hon’ble Supreme Court in the SLP filed by the
applicant and thus, it has attained its finality.
Learned advocate submitted that in fact, the
present application is preferred without
disclosing any change in the circumstances except
delay in trial and the applicant has failed to
show any change in the circumstances and the
reasons, which are mentioned in the memo of
application, were at all available at the earlier
point of time when earlier bail application was
rejected. Learned APP further submitted that as
stated above, this is a successive bail
application and, hence, change in the circumstance
is required to be pointed out by learned advocate
but he has failed to show and in absence of any
changed circumstances, this application cannot be
entertained and it may be rejected.
7. Learned APP submitted that the present application
is preferred solely on the ground that the trial
has not concluded within time framed schedule and
the period of incarceration spent by the
applicant. She, however, referred to the
chargesheet papers and submitted that the role of
the applicant is described in a graphical manner
and the said role has already been considered by
this Court while rejecting earlier bail
application preferred by the applicant. She,
however, submitted that in fact, from the
chargesheet papers, the role attributed to the
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applicant herein is clearly spelt out. She
referred to the chargesheet papers submitted that
the applicant used to forward/ supply certain
secret information of the national to the handler
of ISI situated at Pakistan and in turn, he used
to received monetary benefits from neighbouring
country and thus, the applicant is acting against
the welfare of nation and the said fact is clearly
substantiated from the documents collected by the
IO during the course of investigation. She further
submitted that the present applicant is resident
of Jammu & Kashmir and if the applicant is
released on bail, in that event, it would be very
difficult for the prosecution to secure his
presence and it would affect the trial also as the
same is in progress and few witnesses are to be
examined. She further submitted that as stated
above, summons have been issued calling those
witnesses, therefore, they would be examined in
near future to prove the guilt against the
applicant, therefore, the bail may not be
considered only on the ground of delay in trial as
also period of incarceration. It is, therefore,
urged that the present application may not be
entertained.
8. I have heard the learned advocates appearing on
behalf of the respective parties and perused the
papers of the investigation and considered the
allegations levelled against the applicant and the
role played by the applicant. I have also
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considered the reasoning given by the concerned
court while rejecting the bail application and the
affidavit filed by the IO opposing the said
application.
9. It is the settled position of the law that, at
this juncture detailed discussion of evidence and
canvassing of the allegations contained in FIR as
well as affidavit of the concerned Investigating
Officer or the merits of the case as well, is not
necessary and should be avoided.
10. So far as the maintainability of a successive bail
application is concerned, it is no longer res-
integra that the same is maintainable. However,
the question, which arises for consideration of
this Court, is as to whether without any fresh new
and changed circumstances, a Court should consider
a subsequent bail application ignoring its
previous order rejecting the previous bail
application or not. In my considered opinion, the
same would not be possible. A subsequent bail
application is maintainable but consideration of
the prayer of bail would depend on the facts as to
whether fresh and new grounds have been pleaded
and are available or not.
11. It is a well settled principle of law that when
the successive application comes before the Court,
the Court would be very conscious while
considering the same. It is also a settled
position of law that successive bail applications
are permissible under the changed circumstances
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and the changed circumstances must be substantial
one which has direct impact on the earlier
decision and not merely a cosmetic changes which
are of little or no consequences. As held by the
Apex Court in State of Maharashtra Vs. Captain
Buddhikota Subha Rao, reported in AIR 1989 SC
2292, that successive bail application can be
entertained by the Court when substantial change
is established by the accused, which would entitle
him for getting bail in successive bail
application. The Court should not pass the order
of releasing him on bail in successive bail
application merely establishing some cosmetic
change between time gap of two applications. There
should be drastic change during the period between
two applications, which would entitle the accused
for bail. The Apex Court in the case of
Kalyanchandra Sarkar Vs. Rajesh Ranjan, reported
in (2005) 2 SCC 42 while dealing with the issue of
successive bail application has observed that
without change in the circumstances, the
subsequent bail application would be deemed to be
seeking a review of the earlier rejection order
which is not permissible under the criminal law.
The Hon’ble Supreme Court has further observed
that while entertaining such undefined consequent
bail application, the Court has a duty to consider
the reasons and grounds on which the earlier bail
application was rejected and what are the fresh
grounds which persuade it warranting the
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evaluation and consideration of the bail
application afresh and to take a view different
from one taken in the earlier application.
12. At this stage, I would like to put reliance upon
the decision of the Hon’ble Supreme Court in case
of Central Bureau Of Investigation Vs. V.Vijay Sai
Reddy, reported in (2013) 7 SCC 452, wherein the
Hon’ble Supreme Court has observed as under,
“While granting bail, the court has to keep
in mind the nature of accusations, the
nature of evidence in support thereof, the
severity of the punishment which conviction
will entail, the character of the accused,
circumstances which are peculiar to the
accused, reasonable possibility of securing
the presence of the accused at the trial,
reasonable apprehension of the witnesses
being tampered with, the larger interests
of the public/State and other similar
considerations. It has also to be kept in
mind that for the purpose of granting bail,
the Legislature has used the words
“reasonable grounds for believing” instead
of “the evidence” which means the Court
dealing with the grant of bail can only
satisfy it as to whether there is a genuine
case against the accused and that the
prosecution will be able to produce prima
facie evidence in support of the charge. It
is not expected, at this stage, to have the
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evidence establishing the guilt of the
accused beyond reasonable doubt.”
13. Considering the above decision, it is required to
be noted that the economic offences constitute a
class apart and need to be visited with a
different approach in the matter of bail. The
economic offence having deep rooted conspiracies
and involving huge loss of public funds needs to
be viewed seriously and considered as grave
offences affecting the economy of the country as a
whole and thereby posing serious threat to the
financial health of the country.
14. It is found out from the arguments canvassed by
learned advocate for the applicant that main
argument of learned advocate for the applicant is
with regard to delay in trial and period of
incarceration spent by the applicant in jail and
liberty guaranteed under Article 21 of the
Constitution of India relying upon the recent
decisions of the Hon’ble Supreme Court. It is,
however, required to be noted that except above
facts, learned advocate for the applicant has
failed to point out any chance in circumstances.
Therefore in absence of any change in the
circumstances, once again present application is
preferred agitating same grounds, which in the
opinion of this Court, is not available to the
applicant in a successive bail application.
15. At this stage, I would like to refer to the
decision of the Hon’ble Supreme Court in case of
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State of Maharashtra Vs. Buddhikota Subha Rao,
reported in 1989 Supp (2) SCC 605, wherein it has
been held by the Apex Court that once a bail
application was rejected there was no question of
granting a similar prayer. Granting it would be
virtually overruling the earlier decision without
there being a change in the fact-situation. A
substantial change is one which has a direct
impact on the earlier decision and not merely
cosmetic changes which are of little or no
consequence. It has been held as under :-
“7. Liberty occupies a place of pride in our
socio-political order. And who knew the
value of liberty more than the founding
fathers of our Constitution whose liberty
was curtailed time and again under
Draconian laws by the colonial rulers. That
is why they provided in Article 21 of the
Constitution that no person shall be
deprived of his personal liberty except
according to procedure established by law.
It follows therefore that the personal
liberty of an individual can be curbed by
procedure established by law. The Code of
Criminal Procedure, 1973, is one such
procedural law. That law permits
curtailment of liberty of anti-social and
anti-national elements. Article 22 casts
certain obligations on the authorities in
the event of arrest of an individualPage 11 of 19
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accused of the commission of a crime
against society or the Nation. In cases of
undertrials charged with the commission of
an offence or offences the court is
generally called upon to decide whether to
release him on bail or to commit him to
jail. This decision has to be made, mainly
in non-bailable cases, having regard to the
nature of the crime, the circumstances in
which it was committed, the background of
the accused, the possibility of his jumping
bail, the impact that his release may make
on the prosecution witnesses, its impact on
society and the possibility of retribution,
etc. In the present case the successive
bail applications preferred by the
respondent were rejected on merits having
regard to the gravity of the offence
alleged to have been committed. One such
Application No. 36 of 1989 was rejected by
Suresh, J. himself. Undeterred the
respondent went on preferring successive
applications for bail. All such pending
bail applications were rejected by Puranik,
J. by a common order on 6-6-1989.
Unfortunately, Puranik, J. was not aware of
the pendency of yet another bail
application No. 995 of 1989 otherwise he
would have disposed it of by the very same
common order. Before the ink was dry onPage 12 of 19
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Puranik, J.’s order, it was upturned by the
impugned order. It is not as if the court
passing the impugned order was not aware of
the decision of Puranik, J.; in fact there
is a reference to the same in the impugned
order. Could this be done in the absence of
new facts and changed circumstances? What
is important to realise is that in Criminal
Application No. 375 of 1989, the respondent
had made an identical request as is obvious
from one of the prayers (extracted earlier)
made therein. Once that application was
rejected there was no question of granting
a similar prayer. That is virtually
overruling the earlier decision without
there being a change in the fact-situation.
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. Between the two orders there
was a gap of only two days and it is
nobody’s case that during these two days
drastic changes had taken place
necessitating the release of the respondent
on bail. Judicial discipline, propriety and
comity demanded that the impugned order
should not have been passed reversing all
earlier orders including the one rendered
by Puranik, J., only a couple of daysPage 13 of 19
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before, in the absence of any substantial
change in the fact-situation. In such cases
it is necessary to act with restraint and
circumspection so that the process of the
court is not abused by a litigant and an
impression does not gain ground that the
litigant has either successfully avoided
one judge or selected another to secure an
order which had hitherto eluded him. In
such a situation the proper course, we
think, is to direct that the matter be
placed before the same learned Judge who
disposed of the earlier applications. Such
a practice or convention would prevent
abuse of the process of court inasmuch as
it will prevent an impression being created
that a litigant is avoiding or selecting a
court to secure an order to his liking.
Such a practice would also discourage the
filing of successive bail applications
without change of circumstances. Such a
practice if adopted would be conducive to
judicial discipline and would also save the
court’s time as a judge familiar with the
facts would be able to dispose of the
subsequent application with despatch. It
will also result in consistency. In their
view that we take we are fortified by the
observations of this Court in para 5 of the
judgment in Shahzad Hasan Khan v. IshtiaqPage 14 of 19
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Hasan Khan [(1987) 2 SCC 684] . For the
above reasons we are of the view that there
was no justification for passing the
impugned order in the absence of a
substantial change in the fact-situation.
That is what prompted Shetty, J. to
describe the impugned order as ‘a bit out
of the ordinary’. Judicial restraint
demands that we say no more.
(emphasis supplied)
16. At this stage, I would also like to refer to the
decision of the Hon’ble Supreme Court in case of X
Vs. State of Rajasthan & Anr., delivered in
Special Leave Petition (Criminal) No.13378 of
2024, wherein the Hon’ble Supreme Court, while
considering the application for bail, has opined
that once the trial commences, the High Court
should not exercise the discretion as it would be
fatal to the prosecution case. Paragraph No.16 of
the said decision reads as under,
“16. We are of the view that the aforesaid is
not a correct practice that the Courts
below should adopt. Once the trial
commences, it should be allowed to reach to
its final conclusion which may either
result in the conviction of the accused or
acquittal of the accused. The moment the
High Court exercises its discretion in
favour of the accused and orders release of
the accused on bail by looking into the
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deposition of the victim, it will have its
own impact on the pending trial when it
comes to appreciating the oral evidence of
the victim. It is only in the event if the
trial gets unduly delayed and that too for
no fault on the part of the accused, the
Court may be justified in ordering his
release on bail on the ground that right of
the accused to have a speedy trial has been
infringed.”
17. At this stage, I would like to put reliance upon
the decision of the Hon’ble Apex Court in the case
of Rajesh Ranjan Yadav @ Pappu Yadav Vs. CBI
Through its Director, reported in (2007) 1 SCC 70,
wherein, the Apex Court has laid down that, while
considering an application for regular bail, the
Courts shall have to take into consideration, the
following aspects,
(a) The nature of accusation and the severity
of punishment in case of conviction and the
nature of supporting evidence;
(b) Reasonable apprehension of tampering with
the witness or apprehension of threat to
the complainant;
(c) Prima facie satisfaction of the court in
support of the charge;
18. The Hon’ble Apex Court, further, observed at
Paragraphs-10 and 16 thus;
“10. In our opinion none of the aforesaid
decisions can be said to have laid down anyPage 16 of 19
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absolute and unconditional rule about when
bail should be granted by the Court and
when it should not. It all depends on the
facts and circumstances of each case and it
cannot be said there is any absolute rule
that because a long period of imprisonment
has expired bail must necessarily be
granted.
16. We are of the opinion that while it is true
that Article 21 is of great importance
because it enshrines the fundamental right
to individual liberty, but at the same time
a balance has to be struck between the
right to individual liberty and the
interest of society. No right can be
absolute, and reasonable restrictions can
be placed on them. While it is true that
one of the considerations in deciding
whether to grant bail to an accused or not
is whether he has been in jail for a long
time, the Court has also to take into
consideration other facts and
circumstances, such as the interest of the
society.”
19. Apart from the above, I have also considered
merits of the case, which has already been
discussed while rejecting earlier bail application
preferred by the applicant and found the active
involvement of the applicant in the commission of
crime in connivance with other co-accused.
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Therefore on merit also, the applicant has no
case.
20. I have also considered the decisions relied upon
by the learned advocate for the applicant, copies
of which are produced on record. However having
considered those decision, there cannot be any
dispute with regard to the ratio laid down in the
same. However, in the facts and circumstances of
the case on hand and this being discretionary
relief, which requires to be granted judiciously,
the said decisions would be of no help to the
present applicant at this juncture considering the
nature of offence, role attributed to the
applicant and played by him as also the fact that
the applicant has committed offence against the
nation.
21. Over and above that, strong apprehension has been
shown by prosecution that if the applicant is
released on bail then, there is possibility of
tampering with the evidence and fleeing away from
the trial. Over and above that, the trial has
proceeded further and few witnesses are yet to be
examined and within no time, the witnesses would
be examined and the trial would be concluded.
22. From the aforesaid discussion, it appears that as
per the prosecution case, the applicant is
involved in serious offence against the welfare of
nation though he was working in BSF, wherein his
active involvement is found out and taking into
consideration the complicity of the applicant,
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there being apprehension of the witnesses being
influenced as the trial has already begun,
severity of punishment as drawn from the nature
and gravity of the accusations, after taking due
consideration of the submissions of the parties,
and the settled case law in various judgments
passed by the Hon’ble Supreme Court and various
Hon’ble High Courts, without expressing any
opinion on the merits of the case, I am of the
opinion that it is not a fit case for bail, that
too, in a successive application.
23. Considering the submissions canvassed by learned
advocates for the parties, perusing the records
and the law on the issue, there is no fresh and
new ground available in the present successive
bail application. Therefore, I do not find any
substantial change in the circumstance so far as
merit of the case is concerned and do not find it
a fit case for bail.
24. Accordingly, the present application is rejected.
Notice is discharged. However, it is expected that
the trial court concerned shall proceed with the
trial and conclude the same as early as possible.
25. Needless to say that any expression of opinion
given in this order does not mean an expression of
opinion on the merits of the case and the trial
Court will not be influenced by any observations
made therein.
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
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