ORDER

13.12.2021 Heard Mr. M.U. Mahmud, learned counsel for the petitioners and Mr. B.B. Gogoi, learned Additional Public Prosecutor for the respondent State of Assam.

2. By this application under Section 438, Code of Criminal Procedure, 1973 (CrPC), the petitioners viz. 1) Saidur Rahman, 2) Rakibul Islam @ AAM Fatalu and 3) Rofikul Islam @ Ham Babu have approached this Court seeking the benefit of pre-arrest bail, apprehending their arrest, in connection with Bilasipara Police Station Case No. 605/2021 registered for offences punishable under Sections 395/376/436, Indian Penal Code after rejection of their earlier bail application, AB no. 2794/2021 by an order dated 26.10.2021 after perusal of the materials in the case diary.

3. Mr. Mahmud, learned counsel for the petitioners has submitted that the FIR lodged in the present case is a counterblast to an FIR lodged by the mother of the petitioner no. 2 on 08.07.2021 which was prior to institution of the FIR against the petitioners. The said FIR lodged by Msstt. Romisa Bibi, the mother of the petitioner no. 2, has been registered as Bilasipara Police Station Case no. 600/2021 wherein the husband of the informant in Bilasipara Police Station Case no. 605/2021 has been named as the accused.

4. Mr. Gogoi, learned Additional Public Prosecutor has produced the case diaries of Bilasipara Police Station Case no. 600/2021 and Bilasipara Police Station Case no. 605/2021. He has submitted that the two FIRs pertain to two different incidents.

5. In the First Information Report [FIR] lodged in connection with Bilasipara Police Station Case no. 605/2021, the informant has alleged that the 3 [three] named accused persons along with 4 [four] other unknown persons had entered the house of the informant when the husband of the informant was not present in the house. There is allegation of forceful rape upon the informant and burning of house by the assailants. Allegation is also made to the effect that there was looting of cash and gold and silver ornaments.

6. When the earlier bail application was listed on 26.10.2021, the case diary of Bilasipara Police Station Case no. 605/2021 was produced and the materials in the case diary were perused. From the materials in the case diary, it had emerged that the independent witnesses had corroborated that the assailants had set the kitchen of the informant at fire. They had also supported the version that there was commission of robbery/dacoity. The informant in her statement recorded under Section 164, CrPC had stated that she was forcefully raped by the 3 [three] named accused persons i.e. the present accused-petitioners in that incident. In view of availability of sufficient incriminating materials in the case diary against the petitioners, the earlier bail application, AB no. 2794/2021 was rejected.

7. The incident mentioned in the FIR lodged in connection with Bilasipara Police Station Case no. 600/2021 was of 08.07.2021 whereas the FIR in connection with Bilasipara Police Station Case no. 605/2021 was lodged in respect of an incident occurred on 11.07.2021. Though the two FIRs were lodged within a gap of three days, the incidents mentioned in the two FIRs are separate to one another and are not part of the same transaction. The two incidents in the two FIRs are at best have some relation and one can be in retaliation with another.

8. It is settled that after rejection of application for pre-arrest bail under Section 438, CrPC on merits, there is scope to file a subsequent bail application for pre-arrest bail only if there is a change in the fact situation or in law which requires earlier view being interfered with or where the earlier finding has become obsolete. The grounds cited in this second application on behalf of the petitioners do not appear to be of any substance for re-consideration of the earlier order dated 26.10.2021 passed in AB no. 2794/2021.

9. The earlier bail application, AB no. 2794/2021 was rejected in view of presence of sufficient inc