Dushyant Singh vs State

S. K. Phaujdar, J.—This is second bail application on behalf of the applicant in connection with case Crime No. 356 of 1997 under Sections 376 and 302IPC, read with Section 3 (1)(2) of the SC and ST (Prevention of Atrocities) Act, P.S. Chandawak. District Jaunpur. The matter is pending at the trial stage now and witnesses have been examined.

The first prayer for bail for the present applicant in this very case was rejected on 1551999 and the present application was filed in July, 1999. In the second application, the petitioner proposed to refer to the statements of the witnesses made during the trial and he further proposed to draw an inference that the statements are contradictory inter re as also contradictory to their first narration before the police. And, at least, one witness Subedar Ram was declared hostile. The learned Counsel placed before me a certified copy of the order sheet of the trial Court to impress that the trial is pending for examination of further witnesses while the witnesses of facts have been examined and further to impress that the petitioner is in custody for a long period.

Reliance was placed before me on a decision of the Supreme Court in Chandra Swamy''s case, (1996) 6 SCC 751. In relation to grant of bail in nonbailable offence, the Supreme Court had directed in this judgment that the paramount consideration for grant of bail in case of nonbailable offences should always be whether enlargement on bail would jeopardise the prosecution case. It was contended on the basis of this observation that the witnesses of facts have been examined, there is no further possibility of any jeopardy to the prosecution story and looking to the long detention of the applicant in custody, he deserved bail. Reliance was also placed on a decision of the Division Bench of the Allahabad High Court in the case of Satya Pal, 1998 (37) ACC 287 (HC). The decision was given upon a reference by a single Judge on a question : "Whether a fresh argument in a second bail application for an accused should be allowed to be advanced on those very facts that were available to the accused while the first bail application was moved and rejected?" In the concluding paragraph of the judgment the Division Bench held that such arguments cannot be allowed to be advanced. The Division Bench accepted the view that some degree of finality is to be maintained even to interim orders and it must not be kept open to frequent change unless substantial changes in the fact situation were indicated. This case law, it is felt, goes against the applicant for taking up points on such facts that were available to him 1551999, the date on which the matter was first heard and disposed of. A perusal of the records indicates that the FIR, postmortem report, the spotmap etc. were all before the applicant and any socalled inconsistency in these papers may not be reagitated in this second bail application.

However, the second bail application may always be heard with some substantial change of facts and one of such facts, as per the applicant, is long stay behind the bars and the other is the statements of the witnesses in Court, as submitted by the learned Counsel. It however, appears that the statement of Champa Devi was recorded long prior to 1551999 and was concluded on 204 1999. This statement may not, therefore, be deemed to be a fact not known to the applicant or not available for him for being shown in the first bail application. Under these circumstances, we are left with the question of long stay of the applicant in custody.

The main witnesses in the case have already been examined and although there is no chance of any tampering at the present, this Court cannot shut its eyes to the allegations made in the FIR and in the evidence. Any order for bail at this stage may not only hamper the progress of he trial but would also give a signal about the appreciation of evidence which must be left to be done by the trial Judge. The only direction that can be given is that the trial Judge is to conclude the trial without unnecessary delay.

With the above observation, the present bail application stands dismissed.