JAIN, J. - (1.) THIS is second bail application u/s 439 Cr. P. C. The first bail application was dismissed vide order dated 10. 05. 2004 in S. B. Cri. Misc. Bail Application No. 5603/03.
(2.) LEARNED counsel for the petitioner submits that petitioner is in judicial custody since June, 2003 and there is no satisfactory progress in the trial. He further submits that there is no recovery of any statute or idol in the present case from the petitioner. Therefore, the petitioner should be released on bail. The application has been opposed by the learned Additional Advocate General. He submits that petitioner was closely associated with main/co-accused namely Vaman Narain Ghiya against whom number of cases of identical offences are pending and who used to purchase the idols, statutes, monuments from accused- persons for smuggling purpose. Apart from merits of the case and allegation against the petitioner, the learned Additional Advocate General submits that as many as 27 criminal cases are registered/pending against the petitioner and he being habitual offender, should not be released on bail. Learned Additional Advocate General further submits that this Court while rejecting the second bail application of six other co-accused persons namely, Munna Ali, Sugar, Kamlesh, Gopal, Sher Singh and Rameshwar Singh in S. B. Cri. Misc. Second Bail Application No. 667/05 and other bail applications, passed an order on 18. 05. 2005, directing the Trial Court to record the statement of important/relevant six witnesses on priority basis within a period of four months and there was a specific direction to the prosecution also to examine these witnesses on priority basis. In some of the bail applications, a liberty was given to co-accused persons to move this Court for another bail application, if prosecution fails to examine the six important/material witnesses on priority basis. Learned counsel for the petitioner has referred the case of Kushal Singh @ Chhela vs. State of Rajasthan, reported in 2005 (1) RCC 494, wherein the accused of that case, involved in 28 cases was released on bail. He further submits that there is no merit in the prosecution case as per charge sheet filed against the petitioner. He also submits that prima facie no offence is made out against him and his application for bail should not be rejected only on the ground of pendency of other criminal cases. On the other hand, learned Additional Advocate General has referred the case of Rampratap Yadav vs. Mitra Sen Yadav and Another, reported in (2003) 1 SCC 15 and Prahlad Singh Bhati vs. NCT, Delhi and Another, reported in (2001) 4 SCC 280, wherein the Hon'ble Supreme Court has laid down relevant factors required to be considered by the Court while taking a decision in the matter of enlargement of accused on bail. The Hon'ble Apex Court considered the previous history and antecedents of the accused as relevant facts to be considered by a Court while taking a decision in the matter of enlargement on bail. He also submits that there is sufficient evidence available against the petitioner about the offence. The Trial Court has also framed charge against the petitioner which shows that there is prima facie case against the petitioner. So far as the case of Kushal Singh vs. State of Rajasthan (supra), is concerned, it was specifically mentioned that 28 cases said to be pending against the accused were relating to the period from the year 1977 to 1994 and no offence was committed by the accused during the period from 1994-2004 meaning thereby that accused improved himself in last ten years. It was also observed that in those cases, the petitioner was either acquitted or the cases wherein he was convicted, were or minor nature. Therefore, the case of Kushal Singh vs. State of Rajasthan (supra), is distinguishable and is not applicable in the facts and circumstances of the present case. The case of Kushal Singh cannot be applied as a rule.
(3.) IN Rampratap Yadav vs. Mitra Sen Yadav (supra), the Hon'ble Apex Court held as under :- " Be that as it may, it cannot be denied that previous conviction of an accused for a heinous offence punishable with imprisonment for life, his involvement in other crimes and the quantum of punishment for the offences in which the applicant is seeking bail are all relevant factors to which the court should consciously advert to while taking a decision in the matter of enlargement on bail. " In Prahlad Singh Bhati vs. NCT, Delhi and Another (supra), the Hon'ble Supreme Court has held as under :- " The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting on bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it (sie itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt. " The above referred judgments of the Hon'ble Supreme Court lay down that involvement of the accused in other crimes, his character and behaviour are relevant factors, which are required to be considered by a Court while taking a decision in the matter of enlargement on bail. ;