1 17 S.B. CRIMINAL MISC. 2nd BAIL APPLN. NO. 795/2010. Ranjeet Das Vs. The State of Rajasthan Date of Order :: 25th February 2010. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Narpat Singh, for the petitioner. Mr. O.P. Singaria, Public Prosecutor. ... BY THE COURT: The petitioner, accused of offences under Sections 363, 366, 376 IPC, has moved this second application for bail under Section 439 Cr.P.C. The first application for bail (No. 5916/2009) was rejected by this Court on 12.11.2009 as not pressed at the given stage with the following order:- “Having regard to the circumstances of the case, the learned counsel for the petitioner submits that the petitioner shall stand advised not to press on this bail application at this stage but to take recourse to the appropriate remedy at the later stage; and with these submissions, does not press on this bail application at this stage. Accordingly, this bail application under Section 439 Cr.P.C. moved on behalf of the petitioner Ranjeet Das S/o Maheshwar Das is dismissed as not pressed at this stage.” The petitioner, thereafter, moved another application for bail before the learned Trial Court that came to be rejected on 22.01.2010 with the observations that the charges had been 2 framed for the offences under Sections 363, 366, 376 IPC and the matter was fixed on short dates for evidence with the next date being 09.02.2010. The learned counsel for the petitioner submitted that the evidence was not recorded on 09.02.2010 for the Presiding Officer being on leave; and now, the matter is fixed in the Trial Court on 11.03.2010. The learned counsel for the petitioner has strenuously argued on the bail plea of the petitioner at length practically taking the Court through the entire of the challan papers and contended that the prosecutrix has not alleged any forcible sexual assault on her person; and that the age of the prosecutrix has been estimated at 16-17 years in the medical report. The learned counsel has referred to Section 375 of the Indian Penal Code and submitted that consciously the legislature has provided the age of 16 years as the age for the purpose of consent and in the given circumstances, a clear case of consent is made out in favour of the petitioner. The learned counsel has also referred to the decision of this Court in the case of Arjun Singh Vs. State of Rajasthan : 1999 Criminal Law Reporter (Rajasthan) 437. The learned counsel submits that the petitioner is in custody since 14.07.2009 and the trial being unnecessarily prolonged, the petitioner deserves not to be detained further. This Court is unable to find a case for granting indulgence to the petitioner in this second bail application. 3 It may be observed that essentially, the considerations in the repeat bail application are of substantial/material change of circumstances since after rejection of the earlier one and else, such subsequent bail applications are not that of a liberty to the petitioner to re-argue on the bail plea on the very same material that was before the Court earlier. The petitioner has though filed this second bail application but essentially seeks yet another consideration of the Court of the same material that was available at the time of rejection of his first bail application and without there being material change of circumstances. However, leaving such aspect aside, the submissions as made on behalf of the petitioner have been considered over again. So far the decision relied upon by the learned counsel for the petitioner is concerned, needless to say that in the bail matters, every case is required to be considered on its own facts and circumstances and the proposition of any precedent for the purpose of grant or refusal of bail hardly comes in operation. The facts of the present case are that, according to the prosecutrix and her family members, she was 14 years of age at the time of incident in question. In the given set of facts and circumstances, looking to the age assertion as made on behalf of the prosecturix, at this stage of the proceedings and on the given material on record, it is difficult to consider, even prima facie, it to be a case of consent. Even otherwise, the charge of offence under Section 376 IPC has been framed 4 against the petitioner and he is also charged of offences under Sections 363 and 366 IPC. Though after framing of charges on 04.01.2010, the prosecution witnesses were not examined on the given date and are yet to be examined, but it appears that the next date is fixed in the Trial Court on 11.03.2010. This Court is unable to find any material change of circumstances; and in the totality of the circumstances, this Court does not feel persuaded to grant indulgence in this second bail application to the petitioner. As a result of the foregoing discussion, this second bail application under Section 439 Cr.P.C. moved on behalf of the petitioner Ranjeet Das S/o Maheshwar Das stands rejected at this stage. (DINESH MAHESHWARI), J. //Mohan//