Important Point:
a) Subsequent bail applications for cancellation of bail under section 437(5) and 439(2), of the Code and for temporary bail need not to be placed before the same Judge and such subsequent bail applications under Section 437(5) and 439(2) of the Code are required to be placed before the appropriate Court as per the rosterb) Difference between interim bail and temporary bail:-c) When an applicant makes a prayer to release him for interim bail i.e. till the successive bail application is decided, the concerned Judge has to deal with the case on merits. Essentially it is in the nature of interim relief pending consideration of prayer for regular bail. If an application is filed for interim bail, which would not be for a specific period, the same would require detailed scrutiny of evidence, therefore, in our views, it should be heard by the Judge, who is in-charge of the successive bail application. Even procedurally, such application for interim bail would be filed 'In' the main application for regular bail and therefore will always tag along with such proceedings.d) However, when an accused, whose successive bail application is pending before the High Court, files an application for releasing him on bail for a limited period on various types of reasons, the Court has to look into the reasons for the prayers made by the applicant for his temporary release. There would be number of reasons for asking temporary bail such as marriage in the family, death of relatives, etc.

A.J. Desai, J.

1. This Special Bench has been constituted as per the order of Hon'ble the Chief Justice, pursuant to an oral order dated 27/04/2016 passed by learned Single Judge (Coram: Hon'ble Mr. Justice Anant S. Dave) observing as follows:

"5. Having heard learned advocates appearing for the parties and on perusal of the decision rendered by the larger bench of this Court in Criminal Misc. Application No. 4917 of 2004 and decision of the Apex Court in the case of Mehboob Dawood Shaikh (supra), I am of the view that the issue namely whether observations made by a larger Bench of this Court in Criminal Misc. Application No. 4817 of 2004 relying on case of Mehboob Dawood Shaikh Vs. State of Maharashtra, reported in 2004 AIR SCW 527 subsequent bail applications for cancellation of bail under Sections 437(5) and 439(2) of the Code and for temporary bail need not to be placed before the same Judge. Further, such subsequent applications are required to be placed before the appropriate Court as per the roster will stricto-sensu apply where, learned Judge of this Court is in seisin of regular successive bail application and during pendency of such successive regular bail application, temporary/interim application is filed by the accused and the circular dated 25.8.2004 issued by Joint Registrar, High Court of Gujarat does not deal with such a situation. Therefore, in my view, it is not clear whether such successive/temporary/interim bail application is to be placed and heard by the same learned Judge or to be placed and heard by the appropriate Court as per the roster or as per specific order passed by Hon'ble the Chief Justice."

2. The above issue arose before the learned Single Judge, arising from following facts of the case as well as in view of Circular issued by High Court of Gujarat, as per the decision of the larger bench of this Court in case of Babubhai Bachubhai Bhabhor Vs. State of Gujarat reported in 2004 (3) GLH 101.

The present applicant came to be arrested for the offence punishable under Sections 22, 23, 24, 25, 27(A), 28, 29, 30 & 38 read with Section 8(c) of Narcotic Drugs & Psychotropic Substances Act, 1985 read with Section 120-B of the Indian Penal Code, 1860, for the complaint lodged by the Directorate of Revenue Intelligence, Zonal Unit at Ahmedabad, which was registered as File No. DRI/AZU/NDPS-1/2011. He has filed an application u/s. 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") before the learned Sessions Court. The said application was rejected by the learned Trial Court. He preferred similar application before this Court, which was dealt with by the learned Single Judge of this Court (Coram: Hon'ble Mr. Justice Anant S. Dave) and ultimately the same was rejected by a reasoned order.

The applicant having received some more material, preferred another bail application before this Court u/s. 439 of the Code, being Criminal Misc. Application No. 17689 of 2014. Being a successive bail application, the same was placed for hearing before the same Judge (Coram: Hon'ble Mr. Justice Anant S. Dave), who had dealt with the case of the accused in past, in view of the Circular dated August 25, 2004 issued by the High Court in pursuant to a judgment delivered by larger bench of this Court in Criminal Misc. Application No. 4817 of 2004 dated 12/08/2004 reported in the case of Babubhai Bachubhai Bhabhor (Supra). During the pendency of the successive bail application, the applicant preferred an application, being Criminal Misc. Application No. 2611 of 2016 in the successive bail application and prayed that he may be granted interim bail during the pendency of the successive regular bail application, which was pending for hearing from 2014.

Criminal Misc. Application No. 17689 of 2014 preferred by the applicant-accused for releasing him on regular bail, came to be decided on merits and the same was rejected by the learned Single Judge by CAV judgment dated 27/04/2016.

Learned Single