1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Oma Ram alias Om Prakash Vs. State of Rajasthan S.B.CR. MISC. IIIrd BAIL APPLICATION NO.5398/2007 DATE OF ORDER :: April 08, 2008 PRESENT HON'BLE MR.JUSTICE H.R.PANWAR Dr.S.S.Jodha, for the petitioner. Mr.Ashok Upadhyaya, P.P. for the State. Mr.Vishal Sharma for the first informant. BY THE COURT: By the instant criminal misc. bail application under section 439 Cr.P.C., the petitioner seeks bail in Sessions Case No.16/2007 pending trial in the Court of Additional Sessions Judge (Fast Track), Parbatsar Camp at Makrana arising out of FIR No.458/2006, Police Station, Makrana. I have heard learned counsel for the parties. Carefully gone through the challan papers and the statements of the witnesses recorded by the trial court. 2 It is contended by learned counsel for the petitioner that earlier bail application came to be dismissed as it was not pressed as the matter was at the initial stage. However, thereafter the petitioner moved another bail application, which also came to be dismissed as the matter was at the final stage and the final arguments were partly heard by the trial court. According to the learned counsel for the petitioner, thereafter, the first informant filed an application before the trial court under section 311 Cr.P.C. for calling the witness viz. Dr. B.S.Dutta and a Radiologist of J.N.L. Hospital, Ajmer, which was partly allowed by the trial court and as such the case, which reached the final stage, has been put back to the stage of recording of evidence of the witnesses, however, some of the witnesses were not cited as the prosecution witnesses. The statement of Dr.B.S.Dutta thereafter was recorded as PW.20. Thereafter, the complainant filed one more application calling Shri Pramod Kumar Swami, the Circle Inspector and Dr. R.K.Mathur, the Radiologist. That application also came to be allowed by the trial court. Therefore, again the matter went for recording the evidence of some of the witnesses. Thereafter, the accused made statement under section 313 Cr.P.C. After recording the statements of the witnesses afresh, the matter was fixed for final argument. At that stage, the complainant again moved an application under section 311 Cr.P.C. calling Dr. Anju Yadav. The matter was 3 lingered on because of applications for calling some of the witnesses filed by the complainant for quite long time. Thereafter, the matter was carried to this Court and the proceedings were stayed. Some of the orders were challenged by the complainant before this Court and this Court dismissed the revision petition. The matter was carried to the Hon'ble Supreme Court and there was an interim stay of the trial. The petitioner is behind the bar since his arrest in the year 2006. Ultimately, the SLP filed by the complainant came to be dismissed by the Hon'ble Court on 26.3.2008. However, in other revision petition filed by complainant it was allowed and the witnesses were again called. Thus, according to the learned counsel for the petitioner, the complainant for one or other reasons is not allowing the trial court to decide the matter finally. Whenever the matter reached to the final stage, for one or other reasons, it was taken back for calling/recalling of some of the witnesses and recording their evidence. It is contended that on 11.12.2006, police received a telephonic information that a motorcycle was hit by a jeep and the motorcyclists suffered the injuries. Police recorded the Rapat Rojnamcha at 6.05 P.M. and reached the spot at 7.20 P.M., the injured and the first informant were present. The police requested the injured persons to give report in writing, which 4 they did not give and stated that they are suffering from pain, thereafter, the Police asked Hanuman Ram, who is brother of injured, to give report. He also stated that he would lodge the report afterward as at that time he was busy in getting his injured brothers treated. At any rate, the petitioner has not been named in the Rojnamcha. Thereafter, the witnesses have been examined by the trial court and the allegation is against co- accused Deva Ram, who was said to have been driving the jeep and hit the motorcycle. So far as present petitioner is concerned, he is alleged to be the occupant of the jeep. PW.14 Bhura Ram, an eye-witness, in his statement has stated that petitioner inflicted the injury on the hand of Ratna Ram by iron rod. According to the learned counsel for the petitioner no such injury has been caused to the deceased as is evident from the statement of PW.2 Dr.Sageer Ahmed, who conducted the autopsy of Ratna Ram and found four injuries; injury No.1 is lacerated wound on the forehead; injury No.2 is swelling in the right leg; No.3 lacerated wound on forehead and No.4 swelling above the left eye and according to the learned counsel for the petitioner, there had not been any injury on the person of the deceased on his hand as stated by PW.14 Bhura Ram and, therefore, the statement of PW.14 Bhura Ram does not connect the petitioner with the causing injury to the deceased. The other allegation against the present petitioner is that he caused the 5 injury to injured Bhura Ram, who alleged to have suffered injuries by blunt object, which are simple in nature and according to the learned counsel for the petitioner, at any rate, the offence would not traverse beyond section 323 I.P.C. as no injury has been caused to deceased by petitioner. However, injuries to deceased by hit of jeep have been assigned to co-accused Deva Ram and Sewa Ram. Learned counsel appearing for the first informant submitted that a successive bail application is not maintainable, however, does not dispute that SLP filed by the complainant against the order of this Court in revision, has been dismissed. He has relied on a decision of Hon'ble Supreme Court in Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav & Anr., 2004 (2) Criminal CC 340, wherein the Hon'ble Supreme Court held that accused has right to make successive applications for bail. However court entertaining subsequent application has a duty to consider the reasons and grounds which persuade it to take a view different from one taken in the earlier application. In the instant case, earlier bail application came to be dismissed as not pressed at the initial stage when the trial has not commenced and thereafter when the second bail application came before this Court, the matter reached to the stage of final 6 arguments and the final arguments were partly heard by the trial court and, therefore, merit of the case was neither examined nor considered while dismissing the application for bail. However, subsequent thereto, the complainant moved applications before the trial court not once or twice but on several occasions for recording the statements of some new witnesses, who were not cited even as prosecution witnesses, however, they were examined and some of the applications were allowed. The witnesses were summoned and examined and thereafter again called and examined and now the matter has again put back to the stage of recording the statements of the witnesses and, therefore, in my view, both the earlier bail applications have not been considered and decided on merits. In the circumstances, therefore, the decision relied on by the learned counsel for the first informant turns on its own facts and is of no help to the complainant. On close scrutiny of the material available on record including the FIR, statements of the witnesses and the manner in which the trial has been delayed at the instance of the complainant and the fact that prima facie there is no evidence against the petitioner causing any injury to the deceased, without commenting on the merit of the case, which may prejudice the case of either party at the trial and the trial is likely 7 to take time as the case has again reached to the stage of recording the evidence of witnesses and the fact that the petitioner is in custody over a period of 15 months, I consider it just and proper to allow the bail application filed by the petitioner. Accordingly, the bail application filed under Sec. 439 Cr.P.C. is allowed and it is directed that petitioner Oma Ram alias Om Prakash s/o Goverdhan Ram be released on bail in FIR No.458/2006, P.S. Makrana, District Nagaur provided he furnishes a personal bond in a sum of Rs.20,000/- with two sound and solvent sureties in the sum of Rs.10,000/- each to the satisfaction of learned trial court for his appearance before that court on each and every date of hearing and whenever called upon to do so till the completion of the trial. (H.R.PANWAR),J. m.asif/-