Alim Sheikh vs State Of Madhya Pradesh

This repeat (third) application under Section 439 of Criminal Procedure Code, 1973 has been filed by applicant-Alim Sheikh who is implicated in

connection with Crime No.239/2018, registered at Police Station-Azad Nagar, District-Indore, concerning offence under Sections 302/34 of IPC, 1860

and Section 25, 27 of Arms Act, 1959. Earlier two applications were dismissed as withdrawn vide orders dated 30/10/2018 and 11/12/2019 passed in

M.Cr.C. Nos.41793/2018 and 50099/2019, respectively.

Learned counsel for applicant has submitted that applicant has not committed any offence and he has been falsely implicated in the present crime. He

is in custody since 25/06/2018. Investigation is over and charge-sheet has been filed. Eye witnesses of the incident, namely, Salman, Sheikh Arman,

Shajad, Kailash, Abdul Wahid, Mohd. Rafiq, Mahd. Sabir, Abdulla Ansari have not supported the prosecution story. Another eye witness Shiekh

Usman has already died. It is further submitted that Mohd. Rafiq (P.W.4) is not the eye witness of the incident, therefore, his statement could not be

considered against the applicant. Conclusion of trial will take considerable time. Under these circumstances, learned counsel prays for grant of bail to

the applicant.

Learned Public Prosecutor opposes the application by contending that although some eye witnesses have not supported the prosecution story and

turned hostile, however, Mohd. Rafiq (P.W.4) is also the eye witness of the incident and he deposed against the applicant in his Examination-in-Chief,

however, his cross-examination was deferred at the request of the counsel for the applicant and thereafter when his cross-examination was conducted

till then he was win over by the accused persons, therefore, he accepted in his cross-examination that he had not witnessed the incident. It is further

submitted that while considering the earlier bail application, looking to the statement of Mohd. Rafiq (P.W.4) when this Court expressed its view that

no case was made out for grant of bail to the applicant, then the counsel for the applicant sought permission of this Court to withdraw that application,

therefore, earlier bail application was dismissed as withdrawn vide order dated 11/12/2019 passed in M.Cr.C. No.50099/2019 and thereafter there is

no change of circumstances in which the present application can be considered. Hence counsel prayed that the application filed by the applicant be

dismissed.

Having heard learned counsel for the parties and perused the record.

From the perusal of the order dated 11/12/2019, it appears that in the last occasion, the counsel for the applicant argued that the prosecution witnesses

have not supported the case but this Court was of the opinion that from the statement of Mohd. Rafiq (P.W.4) it was evident that no case was made

out for grant of bail, then learned counsel for the applicant sought leave of this Court to withdraw the application, meaning thereby this Court has

already considered the statement of witnesses and the arguments advanced by learned counsel for the applicant regarding their testimony. Therefore,

there is no change of circumstances in which the present application of the applicant can be considered.

Accordingly, Miscellaneous Criminal Case No.5921/2020 is hereby dismissed.

Certified copy as per rules.