Heard learned counsel for the applicant, learned AGA and perused the record.
The instant second application for bail has been moved on behalf of the accused applicant who is involved in Case Crime No.318 of 2017 under section 307 IPC, P.S. Mohammadi, District Lakhimpur Kheri.
The first application for bail has been rejected vide order dated 15.04.2019. The court while rejecting the bail application has assigned the following the reasons :
"As per injury report, there are three fire arm injuries on the chest and above from elbow and on right upper arm. All the injuries were found fresh and having bleeding. Statement of injured was recorded under Section 161 Cr.P.C., wherein, he has stated that at the time of occurrence, co-accused Guchan had exhorted the present applicant to open fire, to which the present applicant had opened fire from his Tamancha upon him, which hit in his chest.
Looking to the facts and circumstances of the case and also the gravity of the offence, to my view, it is not a fit case for bail.
Accordingly, the bail application is rejected."
In the present second bail application, almost all the grounds available at the time of first bail plea, which have already been considered. There is no new ground in the second bail application with regard to any material change in the circumstances as it was earlier.
Per contra, the learned AGA has vehemently opposed the submissions advanced by the learned counsel for the applicant and submitted that present second bail application is devoid of any merit and the first bail application was rejected after considering the entire material on the record.
I have given my thoughtful consideration to the submissions made by learned counsel for both the parties and have also perused the material on record.
In the case of State of Madhya Pradesh vs. Kajad, 2001 SCC (Cri) 1520 the Apex Court has observed in para 8 that:-
"8-..........It is true that successive bail applications are permissible under the changed circumstances. But without the change in the circumstances the second application would be deemed to be seeking review of the earlier Judgment which is not permissible under criminal law as has been held by this Court in Hari Singh Mann Vs. Harbhajan Singh Bajwa, (2001 [1] SCC 169) and various other judgments."
In this context reference may be made to the observations made by the Apex Court in State of Maharashtra vs. Captain Buddhikota Subha Rao (AIR 1989 SC 2292) wherein the Apex Court has observed that:-
"7.... Once that application was rejected there was no question of granting a similar prayer. That is virtually overruling the earlier decision without there being a change in the fact situation. And when we speak of change, we mean a substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or not consequence...."
In view of said position of law as stated herein above, the points on which learned counsel for the appellant have argued were available to him when first bail application of accused was rejected by means of order dated 15.04.2019, so in view of the ratio of law as laid down in the authorities discussed herein above and the material on record, I do not find any merit in the present bail application.
Accordingly, the second bail application is rejected.
Order Date :- 24.8.2021 VNP/-