{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3927 OF 2011 Satish Nagraj Patil Applicant Versus 1 Kamalbai Gorakh Patil 2 The State of Maharashtra Respondents Mr.N.B.Suryawanshi, advocate for the applicant. Smt. S.S.Jadhav, advocate for Respondent No.1. Mr.D.R.Kale, A.P.P. for Respondent No.2-State. CORAM : R.Y.GANOO, J. DATE : 28 th November, 2011 PER COURT: 1 Respondent No.1 was involved in Cr.No.50/2011 of Nardana Police Station, District Dhule in connection with an incident of 27.06.2011. 2 The reading of the F.I.R. goes to show that the present applicant was directly responsible for the death of Kavita and inasmuch as, she is alleged to have poured kerosene on the person of Kavita from the `chimni’ and put Kavita her on fire. After kerosene was poured on the person of Kavita by the co-accused, she is said to have left the house immediately after this burning incident. {2} 3 The present applicant applied for bail before the learned Additional Sessions Judge, Dhule. The learned Additional Sessions Judge, Dhule, by order dated 6th July 2011, rejected the said bail application on merits. 4 Subsequently, a letter dated 1st August 2011 was sent by the present applicant through Jail addressed to the Additional Sessions Judge. In the said letter, it was mentioned that she is suffering from arthritis and ulcer and she had three children with her and all those three children are in the jail and she is unable to take care of those three children. This application was treated as Criminal Application No.538/2011 by the Court of learned Additional Sessions Judge and it was numbered accordingly. The said application came before the learned Additional Sessions Judge who had rejected the earlier bail application by order dated 06.07.2011. It appears that the learned Additional Sessions Judge was impressed by the fact that the present Respondent No.1 is in the jail along with her three children. It is on this count, he granted bail in favour of Respondent No.1, by order dated 8th August, 2011. This order dated 8th August, 2011 is challenged by the brother of deceased Kavita by contending that the second bail order dated 8 th August, 2011 could not have been passed. 5 Learned advocate Mr.Suryawanshi submits that the {3} ground that Respondent No.1 had three minor children was very much stated in Bail Application No.448/2011 and despite that ground, the learned Judge had rejected the said Bail Application. He submitted that the said ground could not have been a special circumstance as also a change in circumstance to grant bail soon after the first application came to be rejected in July 2011. He, therefore, submitted that a case is made out for setting aside the order dated 8th August, 2011. 6 Learned advocate Smt.Jadhav, appearing on behalf of Respondent No.1, submits that after suffering rejection of Bail Application on 06.07.2011, the applicant sent letter dated 1 st August, 2011 under compelling circumstances, inasmuch as, all the three kids were with her in the jail and she thought that this could be a ground to get bail. It is noticed that the learned Additional Sessions Judge was impressed by the said situation and he granted bail. 7 In this connection, it will have to be observed that said Respondent No.1 had three children to look after was a ground set out in the first Bail Application and, therefore, the second Bail Application, on the said ground, could not have been entertained as an application indicating change in circumstance. It is true that Respondent No.1 carried all the three children to the jail, but that is not a factor on the basis of which her application for bail {4} could have been considered. It is noticed that the learned Additional Sessions Judge, while rejecting the application for bail on 06.07.2011, had relied upon the relevant material and had observed that there is direct evidence against present Respondent No.1 as regards involvement in the death of Kavita. Surely, if this was a reason mentioned while rejecting the Bail Application, the fact that three children are in the jail with Respondent No.1, would not have been a ground on which she could have been released on bail. 8 In my view, the order dated 8 th August 2011 could have been avoided by the learned Additional Sessions Judge. In view of the above said discussion, I am inclined to observe that this application for cancellation of order dated 08.08.2011 will have to be granted. 9 At this stage, after hearing the aforesaid observation, Smt.Jadhav, advocate appearing on behalf of Respondent No.1, submitted that Respondent No.1 be given a period of about fifteen days to enable her to make arrangement to see that the three children are put in the custody of some responsible person. She also submitted that during the intervening period i.e. after she was released on bail, charge sheet has been filed and that Respondent No.1 now wishes to file an application for bail under the heading “Application for bail after filing of the charge sheet”. She submitted {5} that if such an application is filed, same will have to be considered by the concerned Court on merits without going into the facts which had taken place prior to filing of such application. 10 The request made by learned advocate Smt.Jadhav is fair considering the peculiar facts in which Respondent No.1 is placed. Hence while allowing the application for cancellation of bail, I am inclined to grant concession to present Respondent No.1, as submitted by learned advocate Smt.Jadhav. 11 Hence, the following order is passed. (i) Aforesaid Application is granted. (ii) The order dated 08.08.2011, passed by learned Additional Sessions Judge, Dhule in Criminal Bail Application No. 538/2011, granting bail to the present Respondent No.1, is set aside. Bail granted to present Respondent No.1 is hereby cancelled. (iii)Respondent No.1 will have to surrender to the concerned Court. As per the request made by learned advocate Smt.Jadhav, Respondent No.1 is granted time up to 5.00 p.m. of 15 th December, 2011 to surrender to the Court of Additional {6} Sessions Judge, Dhule, to whom the case is committed. (iv)Respondent No.1 is free to file an application for bail under the heading “Application for bail after filing of the charge sheet” to the concerned Court. If such an application is filed, same will be heard by the learned Additional Sessions Judge on merits without going into the past. R.Y.GANOO JUDGE adb/cria392711