A bail application can be refiled after a Special Leave to Appeal is dismissed as withdrawn, and the trial court retains jurisdiction to consider bail applications despite prior dismissals.

ORDER :

1] They are heard. Perused the case diary/challan papers.

2] This is the fourth bail application filed by the applicant under Section 439 of Criminal Procedure Code, 1973, as he/she is implicated in connection with Crime No.425/2022 registered at Police Station Makdon, Ujjain (MP) for offence punishable under Sections 304-B, 306 and 34 of IPC. The applicant is in custody since 10/01/2023. The allegations against the applicant is that of abatement of suicide by his wife.

3] His first bail application M.Cr.C. No.4892 of 2023 was dismissed by this Court on 31.01.2023, as withdrawn, whereas second application M.Cr.C. No.10436 of 2023 was also dismissed on merits on 17.03.2023, against which the applicant also prefers Special Leave to Appeal (Crl.) No.7412 of 2023, which was dismissed by the Supreme Court vide order dated 07.07.2023, as withdrawn and thereafter third application M.Cr.C. No.31025 of 2023 was also filed by the applicant, which came to be dismissed on 16.08.2023, on the ground that his earlier application has already been dismissed on merits.

4] Counsel for the applicant has submitted that while the third application was decided by this Court, it appears that the factum of dismissal of applicant’s Special Leave to Appeal before the Supreme Court was not brought to the notice of this Court. Counsel for the applicant has submitted that although the earlier Special Leave to Appeal before the Supreme Court was dismissed as withdrawn, however, the application before this Court is still maintainable as there was no order passed on merits before the Supreme Court, where the SLP was simply withdrawn. Copy of the order passed in Special Leave to Appeal (Crl.) No.7412 of 2023 is also placed on record.

5] Counsel has drawn the attention of this Court to a decision rendered by the Supreme Court in the case of Sharad Vs. The State of Maharashtra and Anr. passed in Special Leave to Appeal (Crl.) No.2232 of 2018 dated 08.08.2019, wherein also in similar circumstances, when the application for bail was dismissed by the Bombay High Court as withdrawn and subsequently when the accused applied for bail before the trial Court, the same was allowed, and the Bombay High Court held that such course is not available to the trial Court when the bail application of the accused was already dismissed by the High Court itself, and in such circumstances, the Supreme Court has held that the Bombay High Court was wrong in holding that the trial Court has no jurisdiction to decide the bail application when the bail application was dismissed before the High Court. Thus, it is submitted that despite the fact that the present applicant’s Special Leave to Appeal (Crl.) No.7412 of 2023 was dismissed by the Supreme Court as withdrawn, he is entitled to file the present application for bail before this court.

6] It is also submitted that the circumstances have also changed since the earlier dismissal of his bail on merits, as the brother of the deceased has already been examined in the trial Court and has not supported the case of the prosecution. Copy of his deposition is also placed on record. Thus, it is submitted that considering the fact that the applicant s lodged in jail since 10.01.2023, and the final conclusion of trial is likely to take sufficiently long time, as only one witness has been examined out of 15 witnesses, the application may be allowed.

7] Counsel for the State has opposed the prayer.

8] Having considered rival submissions, perusal of the case-diary as also the order passed by the Supreme Court in the Special Leave to Appeal No.7412 of 2023 filed by the applicant, which was disposed of on 07.07.2023, in the following manner:-

“The learned counsel for the petitioner seeks permission to withdraw the Special Leave Petition.

The Special Leave Petition is dismissed as withdrawn.

Pending application(s), if any, shall also stand disposed of.” (Emphasis Supplied)

9] It is apparent that the aforesaid Special leave to appeal was simply dismissed a