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Judgment
B.S. Kapadia, J.—The present application is filed u/s 439 of the Criminal Procedure Code for releasing the petitioner-accused on bail. The offence against him is registered, being C.R. No. 242 of 1989, at Kadi Town Police Station for offences under Sections 498A and 306 of the Indian Penal Code.
Short facts of the prosecution case can be stated as under :
Shila, who was the wife of the petitioner, had a quarrel with her mother-in-law and the present petitioner her husband at 12-00 noon on the day of the incident i.e. 28-9-1989. That after the quarrel, at about 5.30 p.m. present petitioner had gone out for business with a larry. Shila was alone in the room and the mother-in-law and paternal aunt were sitting outside the room. Shilaben put kerosene on her body and got burnt. Shilaben was removed to the Hospital for treatment, where she has lodged the complaint, stating the above facts.
It may be stated that in this matter, formerly, Misc. Criminal Application No. 2063 of 1989 was filed in this Court for releasing the petitioner on bail. On 18-10-1989, the same was withdrawn. As per the say of the petitioner, it was withdrawn because the charge-sheet was not submitted. It appears that again he made an application before the Additional Sessions Judge, Mehsana, being Misc. Criminal Application No. 681 of 1989 and for the reasons stated in the order dated 20-12-1989, it was dismissed. Thereafter, again petition was filed before this Court for releasing him on bail, being Misc. Criminal Application No. 2900 of 1989 and that was also withdrawn when this Court was about to dictate the order. Misc. Criminal Application No. 2900 of 1989 was heard by J.U. Mehta, J. and Misc. Criminal Application No. 2063 of 1989 was heard by N.B. Patel, J. Therefore, the fact remains that two petitions filed before this Court as well as one petition filed before the Sessions Court were dismissed. The second petition was filed after the charge-sheet and, therefore, there is no question of any substantial change in the fact situation.
In view of the aforesaid state of affairs, Mr. Pathan, learned Advocate for the petitioner, states that he only requested the learned Judges of this Court to permit him for withdraw the applications and the said permission was granted and, therefore, there were no judgments of this Court, rejecting his petition. He, therefore, submitted that this petition should be heard on merits. It may be mentioned that when J.U. Mehta, J., was about to dictate the judgment, the petition was withdrawn. It speaks for itself eloquently that the, learned Judge was about to dismiss the matter, otherwise the matter would not have been withdrawn by the petitioner. Under these circumstances, when earlier two petitions are dismissed as withdrawn, there must be substantial change in the fact situation for the new petition to be filed.
Mr. S.T. Mehta, A.P.P., has placed reliance on the judgment of the Supreme Court in the case of State of Maharashtra Vs. Captain Buddhikota Subha Rao, . In the said case, it is observed by A.M. Ahmadi, J. that judicial discipline, propriety and comity demanded that the order granting bail should not have been passed reversing all earlier orders, including the one rendered by the single Judge of the same High Court only a couple of days before, in the absence of any substantial change in the fact situation. In such cases, it is necessary to act with restraint and circumspection so that the process of the Court is not abused by a litigant and an impression does not gain ground that the litigant has either successfully avoided one Judge or selected another to secure an order which had hitherto eluded him.
In view of the aforesaid observations of the Supreme Court, new petition for bail can be entertained only when there is any substantial change in the fact situation and not otherwise.
In this case also, Mr. Pathan has not been able to point out any substantial change in the fact situation after the aforesaid Criminal Misc. Application No. 2900 of 1989 was decided on 26-12-1989. Otherwise also, such offences are on the increase and if bail applications in such serious offences are taken lightly, it will have its impact on the society. Taking that aspect also into consideration, I do not see any reason to exercise discretion of releasing the accused on bail. Hence this petition is dismissed.