Successive bail may be granted when material witnesses are examined and do not support the prosecution, and where continued detention would amount to pre-trial conviction, upholding the principle that bail is the rule and jail is the exception.

ORAL ORDER

[1.0] RULE.

Learned APP waives service of rule for the respondent – State.

[2.0] The present successive application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “BNSS”) seeking regular bail in connection with FIR being C.R. No.11824007240297 of 2024 registered with Nizar Police Station, District Tapi for the offences punishable under Sections 323, 302 and 114 of the Indian Penal Code, 1860.

[3.0] Learned advocate appearing on behalf of the applicant submits that present is a successive bail application filed by the applicant as liberty was reserved in favor of the applicant to file a fresh application after material eye-witness and doctor are examined vide order dated 17.10.2024 passed in Criminal Misc. Application No.19415/2024 is behind the bars since 25.04.2024 while disposing the said application as withdrawn. He has further submitted that now the material witnesses are examined and they have not supported the case of prosecution and even if the allegations levelled against the applicant are accepted as it is, even though present applicant is arraigned as accused No.2 and he has not played any active role in commission of the offence and he has not caused any injury and he was present at the scene of offence as it was a public fair. Whatever allegations levelled are against accused No.1. The alleged dispute took place between deceased and accused No.who happens to be brother in law of the deceased and when altercation took place, at that time, present applicant intervened and deceased started making assault to the present applicant and to retaliate the present applicant slapped the deceased and except this there is no any other allegation against the present applicant. He has further submitted that applicant is not having any past antecedent and he is sole bread-winner of his family. He therefore submits that, considering the nature of the offence, the applicant may be enlarged on successive regular bail by imposing suitable conditions.

[4.0] Learned APP appearing on behalf of the respondent-State has opposed the present application by submitting that after disposal of earlier bail application, there is no change in circumstances. The offence is serious one and if the applicant is released on regular bail, possibility of tampering with the evidence cannot be ruled out as trial is in progress. She has submitted that sufÏcient material is collected during the investigation which establishes the overt act on the part of present applicant. Even, blood stains on the nail of present applicant matched with that found on the neck of the deceased. Hence, she has requested to dismiss the present application for successive regular bail looking to the nature and gravity of the offence.

[5.0] While granting bail, the Court has to consider the involvement of the accused in the alleged offence, the jurisdiction to grant bail has to be exercised on the basis of the well settled principles having regard to the facts and circumstances of each case and the following factors are to be taken into consideration while considering an application for bail:

(i) the nature of accusation and the severity of the punishment and the nature of the materials relied upon by the prosecution;

(ii) reasonable apprehension of tampering with the witnesses and threat to the complainant or the witnesses;

(iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of her abscondence;

(iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused;

(v) larger interest of the public or the State and similar other considerations are required to be considered.

[6.0] I have heard the learned advocates appearing on behalf of the respective parties and perused the investigation papers. In present case, the investigation is over and charge-sheet has been filed. Following aspects have been considered:

(1