APPA. 920-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION No. 920 OF 2011 IN CRIMINAL APPEAL No. 437 OF 2009 Vijay Somanappa Harake ... Applicant Vs. The State of Maharashtra ... Respondent *** Mr. Vikas Shivarkar, for the Applicant. Dr. F. R. Shaikh, APP for the Respondent. *** CORAM : V. M. KANADE, & A. M. THIPSAY, JJ. DATE : SEPTEMBER 29, 2011 PC: 1. Heard the learned counsel appearing for the applicant and the learned APP appearing for the respondent. This is the third application filed by the applicant for bail. The applicant has been convicted by the trial court for the offences punishable under S. 302 read with S. 34, 498-A, 304-B of the I. P. Code and Sec. 3 and 4 of the Dowry Prohibition Act, and is inter alia sentenced to suffer rigorous imprisonment for life. 2. The first application for bail was rejected by this APPA. 920-11 - 2 - Court on 21st July, 2009 and the following order was passed- “ The learned counsel appearing for the applicants pray for release the applicants on bail. We do not find any ground for bail. The present bail application is, accordingly, disposed of.” 3. Thereafter second application for bail was filed for temporary bail. It was alleged the grand-son of the applicant was suffering from epilepsy and it was necessary to give proper treatment to him at the K.E.M. Hospital. Taking into consideration the report submitted by the Police Inspector of Wanawadi Police Station, Pune, this Court granted temporary bail for a period of three months. After the said period of three months was over, the applicant was taken back in the custody. In the mean time by an order dated 27th January, 2011 the applicant’s wife, also, was granted bail. A letter has been sent by the applicant through jail. In the said letter, it is stated that the applicant’s two daughters are yet to get married and the applicant has also to look after the grand-son. It is also stated that since the applicant is in jail, he could not apply for subsistence allowance and other terminal benefits. It is also stated that he would like to make application before the Maharashtra Administrative Tribunal. It is stated in the said letter that notice has been served on his wife wherein it is stated that on account of termination of the applicant, his family has been asked to vacate the quarter. The learned counsel for the APPA. 920-11 - 3 - applicant submitted that apart from the various circumstances which are mentioned in the said letter, the application was also not considered initially when the order was passed by this Court on 21st July, 2009. Similarly, the Division Bench of this Court by an order dated 3rd February, 2010 have expressly stated that the application is not considered on merits and specific liberty was granted to prefer an application on merits. It is submitted that pursuant to the opportunity which was granted, the applicant has preferred this application for bail. The learned counsel for the applicant submitted that there is absolutely no material on record to connect the applicant with commission of the offence. He has invited our attention to the judgment and order of the trial Court and the notes of evidence. He further stated that, on the other hand, the trial court had noted in the judgment that the deceased had made complaint against her husband to his commanding officer and had further stated that she had no complaint against her in-laws and that she was ready to reside with them. He also relied on the judgment of the Apex Court in the case of - Babu Singh Vs. State of U.P.1. He has also relied on the observations in paragraph 2 of the said order. 4. The learned APP for the State submits that wife of the applicant has been released on bail and therefore, she would be in a position to take better care of the grand-son. It is also submitted that the application for bail was rejected once on merits in 2009. 1 AIR 1978 Supreme Court 527 APPA. 920-11 - 4 - 5. After having heard the learned counsel for the applicant and the learned APP for the State, in our view, this is a fit case for grant of bail. The Apex Court in the case of Babu Singh (supra), in paragraph 2 of the judgment has observed as under- “2. Briefly we will state the facts pertinent to the present petition and prayer and proceed thereafter to ratiocinate on the relevant criteria in considering the interlocutory relief of bail. Right at the beginning, we must mention that, at an earlier stage, their application for bail was rejected by this Court on September 7, 1977. But an order refusing an application for bail does not necessarily preclude another, on a later occasion, giving more materials, further developments and different considerations. While we surely must set store by this circumstance, we cannot accede to the faint plea that we are barred from second consideration at a later stage. An interim direction is not a conclusive adjudication, and updated reconsider ration is not overturning an earlier negation. In this view, we entertain the application and evaluate the merits pro and con.” 6. In view of the judgment of the Apex Court, this APPA. 920-11 - 5 - Court is not barred from having a second look at the matter on merits at a later stage. Apart from that, by an order dated 3rd February, 2010 a specific liberty has been granted to the applicant to prefer an application on merits. 7. In the present case, the deceased was taken to the hospital in an unconscious condition by the applicant, his wife and his son where she succumbed to injuries and died. There is no material on record to show who had assaulted her. The trial court has observed that the deceased had complained to the Commander against the accused and had stated that she had no complaint against her in-laws and that she was residing with him. This being the position, there is absolutely no material on record to connect the present applicant to the commission of offence punishable under S. 302 of the I. P. Code, though there may be some material, so far as offence under S. 498-A of the I. P. Code is concerned. The applicant has also undergone two years and six months imprisonment. The applicant was also on bail during the trial. It has already come on record that applicant’s grand-son is suffering from epilepsy and he needs to be given proper treatment. It is not disputed that the applicant had received a notice, asking him to vacate the quarter and his wife alone would not be in a position to take care of the two daughters and a grand-son. Taking into consideration all these circumstances, we are of the view that this is a fit case for grant of bail. APPA. 920-11 - 6 - 8. The applicant, therefore, be released on bail, on execution of P. R. bond in the sum of Rs. 10,000/- with one or two sureties in the like amount. He shall report to the concerned police station once in a month. . The criminal application is disposed of in the aforesaid terms. [A. M. THIPSAY, J.] [ V. M. KANADE, J.]