- (1.) S. K. Phaujdar, J. This is second bail application on behalf of the applicant in connection with case Crime No. 356 of 1997 under Sections 376 and 302ipc, read with Section 3 (1) (2) of the SC and ST (Prevention of Atrocities) Act, P. S. Chandawak. District Jaunpur. The matter is pending at the trial stage now and wit nesses have been examined.
(2.) THE first prayer for bail for the present applicant in this very case was rejected on 15-5-1999 and the present ap plication was filed in July, 1999. In the second application, the petitioner proposed to refer to the statements of the witnesses made during the trial and he further proposed to draw an inference that the statements are contradictory inter re as also contradictory to their first narration before the police. And, at least, one wit ness Subedar Ram was declared hostile. THE learned Counsel placed before me a certified copy of the order- sheet of the trial Court to impress that the trial is pend ing for examination of further witnesses while the witnesses of facts have been ex amined and further to impress that the petitioner is in custody for a long period. Reliance was placed before me on a decision of the Supreme Court in Chandra Swamy's case, (1996) 6 SCC 751. In rela tion to grant of bail in non-bailable of fence, the Supreme Court had directed in this judgment that the paramount con sideration for grant of bail in case of non-bailable offences should always be whether enlargement on bail would jeop ardise the prosecution case. It was con tended on the basis of this observation that the witnesses of facts have been examined, there is no further possibility of any jeopardy to the prosecution story and looking to the long detention of the ap plicant in custody, he deserved bail. Reliance was also placed on a decision of the Division Bench of the Allahabad High Court in the case of Satya Pal, 1998 (37) ACC 287 (HC ). The decision was given upon a reference by a single Judge on a question : "whether a fresh argument in a second bail application for an accused should be allowed to be advanced on those very facts that were available to the ac cused while the first bail application was moved and rejected?" In the concluding paragraph of the judgment the Division Bench held that such arguments cannot be allowed to be advanced. The Division Bench accepted the view that some degree of finality is to be maintained even to inter im orders and it must not be kept open to frequent change unless substantial chan ges in the fact situation were indicated. This case law, it is felt, goes against the applicant for taking up points on such facts that were available to him 15-5- 1999, the date on which the matter was first heard and disposed of. A perusal of the records indicates that the FIR, post-mortem report, the spot-map etc. were all before the applicant and any so-called inconsis tency in these papers may not be re-agitated in this second bail application. However, the second bail applica tion may always be heard with some sub stantial change of facts and one of such facts, as per the applicant, is long stay behind the bars and the other is the state ments of the witnesses in Court, as sub mitted by the learned Counsel. It however, appears that the statement of Champa Devi was recorded long prior to 15-5-1999 and was concluded on 20-4- 1999. This statement may not, therefore, be deemed to be a fact not known to the applicant or not available for him for being shown in the first bail application. Under these circumstances, we are left with the question of long stay of the applicant in custody.
(3.) THE main witnesses in the case have already been examined and although there is no chance of any tampering at the present, this Court cannot shut its eyes to the allegations made in the FIR and in the evidence. Any order for bail at this stage may not only hamper the progress of he trial but would also give a signal about the appreciation of evidence which must be left to be done by the trial Judge. THE only direction that can be given is that the trial Judge is to conclude the trial without un necessary delay. With the above observation, the present bail application stands dismissed. Application dismissed. .;