The Bombay High Court, Aurangabad Bench has observed that the support of observations in the earlier order can be taken but it cannot be the sole reason to reject a fresh bail application.

A Division Bench comprising Justice Vibha Kankanwadi and Justice Abhay S. Waghwase held, “At the outset, it is to be noted that the order which was passed below Exhibit-10 cannot be said to be an order on merits. It is a very cryptic order and what was mainly considered was his own observations in Bail Application No.421 of 2021 decided on 16.01.2023. In fact, filing of charge-sheet subsequently amounts to change in the circumstance, giving a right to the concerned accused to make fresh application for bail. Each bail application will have to be decided on its own merits. The support of observations in the earlier order can be taken, but it cannot be the sole reason to reject a fresh bail application.”

The Bench noted that it would take a long time to stand trial and therefore, the appellants need not be kept behind bars.

Advocate Ashwini Lomte represented the appellants while APP V.S. Choudhari represented and Advocate V.A. Chavan represented the respondents.

Facts -

An appeal was preferred under Section 14-A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 i.e., SC-ST Act to challenge the order of rejection of the application under Section 439 of the Cr.PC. passed by the Special Judge. An FIR was lodged against the appellants and their two brothers for the offences punishable under Sections 307, 323, 324, 326, 452, 354, 354-A, 143, 147, 148, 149, and 504 of the IPC and under Section 3(1)(r), 3(1)(s), 3(1)(w), 3(1)(w)(i) and 3(1)(w)(ii) of the SC-ST Act.

An application for bail under Section 439 of the Cr.PC. was filed but the same came to be rejected on the ground that there was a previous bail plea which was rejected by giving observations. Those observations were quoted by the Judge and then it was said that filing of a charge-sheet subsequent to the said application is not the change in circumstance.

The High Court in the above regard observed, “We again say that we are not sitting as an appellate Court considering the said application for cancellation of bail, but we want to caution the judicial officer that they should minutely see the applications and after application of mind, should arrive at a conclusion. When apparently the accused persons were before the Magistrate, he could have ascertained whether they signed the document or not and would have questioned the Advocate as to how in place of signature of all the three accused when name is written, it is in the same handwriting.”

The Court said that even if it is considered that the application was on behalf of those accused persons, it was not necessary for mentioning of name at the place, where usually the signature is put.

“There is no hurdle in allowing the present appeal. … The recovery of the weapon appears to be mainly from the spot itself. No doubt, the witnesses have sustained grievous injuries, but definitely it would take long time to stand the trial and, therefore, the appellants need not be kept behind bar. Suitable conditions therefore are required to be imposed. In respect of conditions to be imposed to the bail application there need not be parity”, also said the Court.

The Court further noted that the protection of the life of the informant and the witnesses is also necessary.

“… taking into consideration the allegations and the statements of the witnesses recorded it is said that the dispute arose on account of land and also in view of the involvement of the appellants in a crime earlier, keeping them away from the village till the conclusion of the trial would be just and proper”, it concluded.

Accordingly, the Court allowed the appeal, set aside the order of the Special Judge, and granted bail to the appellants on furnishing a bond of Rs. 50,000/-.

Cause Title- Yogesh & Anr. v. The State of Maharashtra & Ors.

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