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Khalid Kasam Shaikh vs State Of Maharashtra on 4 August, 1993

Bombay High Court Khalid Kasam Shaikh vs State Of Maharashtra on 4 August, 1993Equivalent citations: 1994 CriLJ 2165 Bench: M Saldanha


1. These three criminal applications for bail raise a common point of law in so far as the solitary ground canvassed before me by learned Counsel appearing on behalf of the applicants was that the case is squarely covered by the decision of my brother Shah, J. dated 4-1-1992 in Criminal Application No. 3606 of 1992. That was also an application for bail under the provisions of the Narcotic Drugs and Psychotropic Substance Act, 1985 and the contention advanced was that where there are a series of arrests, one leading to the other, that the subsequent applicant is entitled to contend that even if he is charged with an offence under the Act that he cannot be put in trial along with other accused as the offence would be distinct and separate and that it would result in misjoinder of charges. My brother Shah, J. in the case before me had observed that the prosecution had contended that they do not desire to separate the trials and in that view of the matter that the accused would be entitled to an acquittal in so far as the prosecution itself would be vitiated. On the basis of this reasoning, my brother Shah, J. held that bail would have to follow. This view has been carried forward in a few other cases.

2. When these matters were argued before me, learned Counsel contended that the point is concluded and that their clients are entitled to bail. To my mind, a decision in a bail application, even if it is a reasoned decision, is strictly confined to the facts of that case alone and does not create any precedent, leave alone a binding precedent. The Court of co-ordinate jurisdiction will, undoubtedly, regard and respect that decision, but there may be circumstances in which deeper, wider or different considerations prevail, in which case another view is possible. Considering the fact, however, that one Court has taken a view that favours the accused, that this is an interim application and that the accused are in custody, I had granted bail in these cases, through I considered it essential to record that hence forward that reasoning may not hold good.

3. The question of whether a defective charge vitiates a trial can only be argued after such a charge is framed and after it is demonstrated that the charge was so defective that it, in fact, sets at naught the entire trial. For this purpose, a detailed examination of the entire prosecution case is necessary which is an exercise that is normally undertaken at the post-trial or appellate stage or, in any event, after the charge has been framed. At the stage of framing a charge, the learned trial Judge will apply his mind to the facts of the case and it is open to him to exclude or include those facts or instances as are permissible under the Code of Criminal Procedure, 1973. When the prosecution alleges a case of conspiracy, common intention or abetment and where the instances are so inter-connected in point of time with each other as to render a joint trial permissible, it could never be argued that merely because of the time-frame involved in the arrest or in the seizure that separate trials are a must. It is perfectly permissible to have a joint trial in many instances and it is, therefore, for the trial Court to resolve this issue.

4. These bail applications that have come up to the High Court are all at a pre-trial stage and are at a stage before the charge has not been framed. It is true that the prosecution has put the accused up for trial on a joint complaint or a charge-sheet, but one cannot overlook the fact that it is still permissible for the trial Court to direct, if the law so requires, that this should be split up. To my mind, therefore, it would be premature at this stage to assume that merely because the accused have been committed to the Court of Session in one lot that the charge, which is yet to be framed, would be vitiated, that an acquittal must follow and if that is the case that bail ought to be granted.

5. One cannot lose sight of the most important aspect of the case, namely, the basic requirement of law under the Narcotic Drugs and Psychotropic Substances Act, which is to the effect that it is the involvement of the accused in an offence punishable under that Act which is the solitary consideration. If the facts justify that there is material to disclose such involvement, then the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act will apply and bail would, normally, have to be rejected. The infirmities, if any, that can be anticipated at the time of the trial are something hypothetical and are, therefore, not something of which the Court can take cognizance in advance because this would be a highly speculative approach which is hardly permissible. On a perusal of the orders passed by Shah, J. it is clear that all these aspects and angles, both factual and legal, were not canvassed before the learned trial Judge and therefore, the Court had no occasion to consider them. These, however, to my mind, are angles of utmost relevance and ones which necessarily require to be looked into.

6. I have indicated at the commencement of this order that I have granted bail in these cases only because of the submission that they are covered by the earlier orders which had taken a particular view. Since the position is now clarified it is open to the prosecution to apply for appropriate orders in these cases, if the facts so justify.

7. The criminal application have already been disposed of by me and I have set out in this judgment the reasons that were to be separately recorded.

8. Order accordingly.

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