TMI Blog1997 (12) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... hary, Senior Advocate while arguing on the bail application of Shalini Rawat read out to me the passage quoted above and thereby made me relive the overwhelming feeling of contrition which had besieged me while acquitting Ajit Kumar. What if Shalini Rawat too is not enlarged on bail and is acquitted years later? Asked Mr.Chaudhay. But then this was not the only contention. Other points too were raised in support of the plea for bail. I shall delineate the same a little later and of course in greater detail but first let us have a peep at the canvas brought out by the prosecution. 3. At the cent restage is Harsh Gupta, a second year student of Bhagat Singh college and the son of a businessman. On September 16, 1995 in broad day-light he was abducted by two persons who were later joined by yet another and whisked away to a distant locality and kept confined there in a house for days and days together. In the meanwhile the persons keeping the vigil had made enquiries about his father and had assured to release him after receipt of the ransom amount. On October 5, 1995 Kamlesh, a lady who used to cook food for him and wash his clothes. told Harsh Gupta that she would talk about his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent incident. It was at the instance of the petitioner and her husband that Shri Harsh Gupta was kidnapped. A sum of ₹ 65,000/- was recovered from the petitioner. Then there is the statement of Shri Jagdish who has stated before the police that the petitioner and her husband came to his house and gave to him a sum of Rs.,5,75,000/- which he got deposited in different banks. Then there is the statement of the person kidnapped who has stated that Smt.Kamlesh told him that she would talk to the petitioner with regard to his release. Considering the above facts and circumstances I do not think present case is a fit case for bail. Dismissed. 6. Mr.Chaudhary says that the earlier order is no bar to the present application though Mr.Sawhney appearing for the State, without referring to any authority in support, says it is. True, successive bail applications by an accused are not barred as there is nothing like a principle of res judicata operating in the field but there must be a substantial change in the fact situation for the court to entertain a subsequent bail application. Where there is no substantial change in fact situation thereafter necessitating release of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d one of the grounds for grant of bail was that all the appellants were the entire male members of a family and all of them were in jail. As noticed, this was not the only ground. It was an additional ground. In the case in hand and as stated by Mr.Sawhney, the petitioner has other family members to stand by and extend a helping hand and the way Mr.Chaudhary went about arguing the matter those family members must be complimented for having done a good job. 9. Mr.Chaudhary reminded me that bail and not jail is the basic rule. The inspiration for this obviously comes from State of Rajasthan v. Balchand MANU/SC/0152/1977MANU/SC/0152/1977 : 1978CriLJ195 . But then Mr.Chaudhary perhaps forgets, if I may say so with respect, that the statement so vociferously proclaimed and advocated is subject to certain very notable exceptions and Krishna Iyer J. who penned that statement underlined the same in the same breath. Lest we forget or are led astray, let us listen to what his Lordship says and that too in clear and unambiguous terms: .ls1 The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or creating oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the former should be subordinated to the later (See: Babu Singh v. State of U.P. MANU/SC/0059/1978MANU/SC/0059/1978 : 1978CriLJ651 ) Mercifully, in this case, there has not been any delay so far and surely, for the reasons already delineated, it is not a case of avoidable incarceration. 13. Lastly, the question posed firstly. What if Shalini Rawat is not enlarged now on bail and is acquitted later? And, in that case, what about her withered years and shattered dreams? The thought had tormented the Supreme Court too in G.Narasimhulu v. Public Prosecutor A.P. AIR 1978 SC 430. I was thus not the first. Nor, in fact, was the Supreme Court. The question is as old as the hills and has been bothering criminologists and penologists. The Supreme Court, in G.Narasimhulu was faced with a case where special leave petition stood admitted and where the final disposal of the petition would have, in all likelihood, consumed years before disposal. It held that in such a situation the Court should ordinarily unless there are cogent grounds for acting otherwise release the accused on bail . Thus emphasis on likelihood of delay in disposal of special leave petition and its becoming a persuasive gr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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