MS.NAHEED ARA MOONIS,J. - (1.) HEARD Sri V.C. Misra, learned Sr. Advocate assisted by Sri Vivek Misra, learned Counsel for the applicant,Sri C.S. Kushwaha, and learned AGA and have been taken through the record.
(2.) THIS is the second bail application moved on behalf of the applicant vide Case Crime No. 1291 of 2008 under sections 302/452/504/506 IPC Police Station, New Mandi District Muzaffar Nagar. The first bail application was rejected by another Bench of this Court vide order dated 9.6.2009. The genesis of the prosecution case in a short compass is that on 1.7.2008 at about 1.00 p.m. the informant Dheeran Singh was going at the house of Suresh with his wife Phool Kumari and son Desh Bandhoo. As soon as they reached in front of the house of Suresh, accused persons Bosi, Anil, Pramod, Ajeet (applicant) and Teenu armed with fire arms hurled abusive and vituperative words unleashing a reign of terror. The complainant along with his wife and son entered in the house of Suresh to save their life. All the accused persons forcibly entered in the house of Suresh. The accused persons Bosi and Tinu caught hold of Desh Bandhoo, the son of the complainant. The accused persons Ajeet, Anil and Pramod started indiscriminate firing which hit to Desh Bandhoo. The victim Desh Bandhoo died on the spot. This incident was witnessed by the complainant, his wife Phool Kumari ,Suresh , Anarkali and others. The accused persons disappeared from the place of occurrence extending threats with dire consequences. The first information report was lodged on the same day i.e. 1.7.1908 at 2.15 p.m. vide Case Crime No. 1291 of 2008 under sections 147/148/149/302/452/504/506 IPC read with section 3(2) (v) S.C.& S.T. Act, Police Station New Mandi District Muzaffar Nagar.
(3.) IT is submitted by the learned Counsel for the applicant that the first bail application moved on behalf of the applicant was rejected by the Hon'ble Single Judge without considering the facts and circumstances and delving into the merit of the case. The second bail application has been filed long back i.e. on 14.10.2009. The applicant is languishing in jail since 8.7.2008.The said application is pending since then whereby right to liberty of the accused- applicant has been curtailed while Article 21 of the Constitution of India envisages that personal liberty has an important role to play in the life of every citizen. The applicant is being deprived of personal liberty on account of pendency of the bail application which is violative of Article 21of the Constitution of India. The statement of witnesses namely Suresh and Phool Kumari are inconsistent with the prosecution case. According to the post-mortem report, there are two gun shot injuries. It cannot be deciphered as to who had caused the gun shot injury to the victim. General role of firing has been attributed to all the accused persons. Right of bail is not only statutory right rather it is constitutional right even though it may be second or third bail application moved on the same ground which were available at the time of rejection of the first bail application. There is no bar to move second or subsequent bail applications even on those grounds which were available at the time of disposal of the first bail application and if arguments about those grounds were not advanced at the time of disposal of first bail application. There is material contradiction in the prosecution version and the post-mortem report which creates doubt about its veracity. Speedy trial is the fundamental right of the accused but the trial is not proceeding swiftly the provision inserted in Article 21 of the Constitution.;