SHETHNA, J. - (1.) THIS is fourth bail application filed by the accused who is a lady on the ground that she is in jail since 19. 12. 96 and the evidence of prosecution witnesses is already over long back but the learned Sessions Judge refused his prayer for bail. It was submitted that she wanted to examine certain defence witnesses in support of her defence to show that she has not made any extra judicial confession before the members of the Gram Panchayat. However, the learned Trial Judge rejected her bail application, therefore, this fourth bail application was presented by the accused before this Court.
(2.) AT the outset, I may state that this fourth bail application came up before me on 5. 4. 1999 and at that time relying upon the judgment of the learned Single Judge of this Court in the case of Ishab Khan vs. State of Rajasthan (1), bail was prayed for on the ground that she wants to examine the defence witnesses in support of her defence to show that she had not made extra judicial confession before the members of the Gram Panchayat. Heavy reliance was placed on paras 11 and 12 of the judgment of this Court in Ishab Khan's case (supra ). In para 11, it has been observed by this Court that: ". . . . . . . . There is no reason to disbelieve the contention of the learned counsel for the petitioner that for the reasons stated by him, the petitioner is not in a position to give the names of those persons and examine them in defence until he is granted an opportunity to find out the names of those persons who had attended in the said Panchayat. " In para 12 of the judgment, it has been observed that:- " Keeping in view the special circumstances of the case, I am of the view that the interest of the petitioner should be protected and he should be given full opportunity to lead his evidence in defence. The interest of the petitioner shall stand protected if he is granted an interim bail for a period of four weeks, to enable him to find out the names of those persons, who had attended in the said Panchayat a. 05. if he so choses, appear in defence. " It is true that every accused has right to examine the witnesses in support of his defence and controvert the evidence led by the prosecution. However, according to me, it was not necessary that the accused should be granted bail or even temporary bail to find out the names of the persons who were to be examined by her as defence witnesses, because, according to me, the accused can always examine the defence witnesses while remaining in jail. For that purpose she was not required to be released on bail. Under the circumstances, I found it difficult to agree with the view taken by the learned Single Judge of this Court. Therefore, on 5. 4. 99, the matter was referred to the larger bench for reconsidering the judgment of the learned Single Judge in Ishab Khan's case. While answering the reference the Division Bench of this Court in its order dated 17. 5. 99 observed that:- " All that has been decided by learned Single Judge of this Court in Ishab Khan's case reported in 1991 (2) RLR 758 is that: " 12. Keeping in view the special circumstances of the case, I am of the view that the interest of the petitioner should be protected and he should be given full opportunity to lead his evidence in defence. The interest of the petitioner shall stand protected if he is granted an interim bail for a period of four weeks, to enable him to find out the names of those persons, who had attended in the said Panchayat a. 05. if he so choses, appear in defence. " The Division Bench in para 5 of its order also stated that:- " It will be seen, therefore, that the learned Judge granting bail in that case did so keeping in view the special circumstances of that case and in our opinion, it cannot lay down any law which can be applied as precedent in relation to grant of bail. "
(3.) THIS, it was made clear by the Division Bench of this Court that it cannot be said that the learned Single Judge in Ishab Khan's case (supra) while granting bail in that case laid down any law which can be applied as precedent in relation to the grant of bail. The Division Bench has further observed in its order that:- " It shall always be competent for a Judge deciding the bail petition to look in to the facts of the case the circumstances in which the bail petition is moved, the possibility of the defence witness being summoned without the accused being released on bail. The necessity of releasing the accused on bail for ascertaining the existence of witnesses will have to be decided with reference to the fact of each case and there is therefore, no question of any precedent being laid down in this matter. " Thus, from the observations made by the Hon'ble Judge of the Division Bench, it is clear that in Ishab Khan's case, the learned Single Judge has never laid down the law that as and when the accused applies for bail on the ground of examining the defence witnesses after the prosecution witness is over, the bail should be granted. ;