A second or successive bail petition is maintainable in law; however, its success depends upon the demonstration of a substantial change in circumstances. In cases involving heinous offences, prolonged incarceration does not automatically entitle an accused to bail if prima facie evidence of criminal participation and apprehension of witness influence exist.

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SUMEET GOEL, J. (Oral)

1. Present second petition has been filed under Section 439 of the Cr.P.C. seeking grant of regular bail to the petitioner in case bearing FIR No.15 dated 17.01.2022, registered for the offences punishable under Sections 302, 34, 201 of IPC and Section 25/54/59 of Arms Act at Police Station Tigaon, District Faridabad.

2. The petitioner had earlier applied for grant of regular bail before this Court which was dismissed as withdrawn on 07.07.2023. The relevant part of said order reads as under:-

“ After arguing for some time, when this Court was not inclined to accept the prayer, learned Senior Counsel on instructions wishes to withdraw the present petition “at this stage”.

Ordered accordingly.

Pending application(s), if any, shall also stand disposed off.”

3. As per the prosecution version, the FIR in question came to be registered on the statement of the complainant namely Satnam, who alleged that on 06.12.2021, the present petitioner along with co-accused Sagar had visited the shop of his nephew namely Sonu and upon refusal to give clothes on credit, they assaulted him and snatched a sum of ₹3,500/-. In that regard, a prior FIR No. 249 dated 06.12.2021 registered under Sections 323, 379-B, 427, 506 and 34 IPC had already been registered against the petitioner and his co-accused. It has been further alleged that thereafter the accused persons persistently threatened the complainant party to withdraw the said case. It has been further alleged that on 16.01.2022, when the complainant along with his brother Kapil (since deceased), nephew Sonu and other relatives had gone to attend a marriage ceremony, the petitioner and co-accused Sagar reached the venue and extended threats to withdraw the earlier case. Upon refusal by the deceased Kapil, an altercation ensued, during which the petitioner allegedly caught hold of Sonu, while co-accused Sagar, at the instigation of the petitioner, fired a shot from a country-made pistol at the chest of Kapil. He was immediately taken to the hospital but succumbed to his injuries on the way. On these set of allegations, the FIR in question came to be registered. During the course of investigation, the accused were arrested and, as per the prosecution, made disclosure statements. The weapon of offence, i.e. a country-made pistol was recovered at the instance of co-accused Sagar and the motorcycle used in the commission of offence was recovered from the present petitioner.

4. Learned senior counsel for the petitioner has iterated that the petitioner has been falsely implicated into the FIR in question and no specific role has been attributed to the petitioner except an omnibus allegation of instigation. Learned senior counsel has further iterated that the petitioner has not inflicted any injury upon the deceased and the entire prosecution case rests solely on an allegation of instigation which is not supported by any cogent or reliable evidence. It has been further contended that there exists no motive whatsoever for the petitioner to commit the alleged offence. Furthermore, the FIR has been lodged after considerable delay and there are material inconsistencies and no ‘Test Identification Parade’ (TIP) has been conducted during investigation which rendered the prosecution story highly doubtful. Learned senior counsel has further submitted that the investigation has been completed and challan has already been presented before the competent Court of jurisdiction. According to learned counsel, the petitioner is stated to be in custody since 19.01.2022 and has undergone incarceration for a substantial period of time. Out of the 23 prosecution witnesses cited by the prosecution, only 07 witnesses have bee