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2009 DIGILAW 847 (ORI)

BEERU ` VINOD KUMAR SINGH v. STATE OF ORISSA

2009-10-29

L.K.MISHRA

body2009
JUDGMENT : L.K. Mishra, J. - The Petitioners are accused persons in S.C. No. 36/18 if 2008 pending in the court of learned C.J.M.-cum-Asst. Sessions Judge, Sonepur involving offence u/s 395 of the I.P.C. read with Sections 25 and 27 of the Arms Act Earlier bail applications filed on behalf of the Petitioners were rejected by this Court vide order dated 24.11.2008 passed in BLAPL No. 11949 of 2008 and BLAPL No. 14770 of 2008. 2. Heard learned Counsel for both sides on both sides on the question of bail. Perused the record. At the time hearing it was noticed that the rejection order passed by the lower court has not been filed along with the bail application. The learned Counsel for the Petitioners Sri H.S. Mishra submitted that since bail applications of the Petitioners were rejected by this Court earlier it was not necessary for them to approach the lower court again for bail and therefore, this application is maintainable. Learned Additional Standing Counsel submitted that as a matter of judicial discipline after bail is rejected by the Hon'ble High Court the accused should again approach the lower court for bail and on failure of such application only may approach this Court. 3. By now it has become an established position of low that once the bail is refused is refused, the accused can be granted bail by the same Court only under changed circumstance. If any changed circumstance is available to the accused entitling him to bail them as per the judicial discipline he should approach the court below first basing on the changed circumstance and thereafter can only be allowed to approach the higher forum. 4. In a decision of this High Court report in Smt. Basanta Sahu Vs. Padma Charan Sahu and Others, entertaining a bail application directly by the Session Judge u/s 439 of Code of Criminal Procedure was deprecated The same position has been reiterated by learned Single Judge of this High Court in a decision reported in Hrusikesh Jena and Another Vs. State of Orissa, In the latter decision it has been made clear that the accused can surrender/is to be produced before the Magistrate at the first instance and if he does not succeed in getting bail then only he may approach he Sessions Judge u/s 439 of Code of Criminal Procedure 5. 5. State of Orissa, In the latter decision it has been made clear that the accused can surrender/is to be produced before the Magistrate at the first instance and if he does not succeed in getting bail then only he may approach he Sessions Judge u/s 439 of Code of Criminal Procedure 5. 5. In case a fresh aground for bail is available to the accused basing on the changed circumstance them such fresh ground needs to be put forth before the Court where the case is pending and only thereafter the accused can approach that higher court u/s 439 of Code of Criminal Procedure. Thus, if the case pending before a Magistrate or the Assistant Section Judge, the accused has to approach the Court where the case is pending forth the changed circumstance. Thereafter, he may approach the Section Judge or Additional Sections Judge, as the case may be and them only he can come to the case is pending before an Additional Sections Judge or Sections Judge, he should file a bail petition afresh delineating the changed circumstance entitling him to bail and on his failure before that forum only should approach the High Court. 6. Since the Petitioners have not approached the lower court again after rejection of their application before this Court, the present bail petition is not maintainable. Learned Advocate for the Petitioners submits that under the circumstance, the Petitioners may be allowed to approach the lower Court again. They are allowed to do so. The BLAPL is disposed of with the aforesaid observation.