- (1.) This criminal Misc. 2nd Bail Application has been filed by the accused petitioner under section 438 Cr.P.C. in FIR No. 56/2012 registered at Police Station Laxmanagarh, District Sikar for the offence under sections 147, 148, 149, 307, 323, 341, 342, and 427 IPC.
(2.) It may be mentioned that earlier the accused petitioner also filed bail application under section 438 Cr.P.C. on 12.4.2012. On 13.4.2012 this court passed the following order while dismissing the bail application No. 3855 of 2012 of the accused petitioner : "13.4.2012 Mr. Madhav Mitra for the petitioner Mr. Peeyush Kumar, P.P. Learned counsel states that he may be permitted to withdraw this bail application with liberty to the petitioner to surrender himself beforethe learned trial court. He is permitted to do so. The bail application is dismissed with the aforesaid liberty."
(3.) The first bail application was filed against the order dated 2.3.2012 of the Sessions Judge Sikar dismissing the anticipatory bail application of the petitioner. It has been argued by Mr. Madhav Mitra, learned counsel for the petitioner that the earlier bail application filed by the petitioner was listed before this court on 13.4.2012 and on that very day his associate Mr. Pallav Sharma appeared before this court and requested for adjourning the bail application since he was out of station to attend the case listed before the Supreme Court. This court directed his associate to argue the matter. It has been further argued that inadvertantly in the order of bail application withdrawal of bail application has been typed wherein his attendance has also been mentioned. In these circumstances, it was argued by Mr. Madhav Mitra that the bail application has not been decided on merits and the grounds taken in the application may be treated as part and parcel of this bail applicaion. The learned counsel has argued that the incident as alleged in the FIR took place on 20.2.2012 and on a written complaint which was lodged on 21.2.2012 n FIR No. 56/2012 was registered alleging that the accused petitioner and his group deliberately made an attack on the complainant and his wife while they were going from Laxmangarh to Sikar. Prior to the FIR No. 56/2012 already an FIR has been filed by the accused petitioner which is FIR No. 53 of 2012 at the Police Station Laxmangarh on 19.2.2012 alleging that the complainant Bhupendra Singh Mahla came to accused petitioner's College and gave beating to him as well as his office staff and took away Rs. 9400/- from the accounts office. On this date the accused petitioner came to the College for taking practical papers for this reason the female externals were also called and with whom the complainant also misbehaved. The dispute is with regard to management of college whereas complainant and petitioner are real brothers. The learned counsel has argued that actually the incident took place between other brothers but out of vengeance due to previous FIR No. 53/2012 the name of the petitioner was also shown as assailant whereas he was never present at the time of occurrence. The FIR is apparently exaggeration of allegation. No medical evidence is available on the record to constitute the offence under section 307 IPC. The learned counsel has further argued that the consecutive application under section 438 Cr.P.C. is not barred by statute and this Court and the Apex Court has time and gain observed that such applications can be considered. According to the counsel his earlier bail application was not decided on merits and in these circumstances it was prayed that this bail application may be decided on merits. He has placed reliance on Ganesh Raj vs. State of Rajasthan and others, 2005 2 WLC(Raj) 327, Siddharam Salingappa Mehtre vs. State of Maharashtra and others, 2011 AIR(SC) 312 and Babu Singh and others vs. The State of Uttar Pradesh, 1978 AIR(SC) 527.;