ORDER Abhay M. Naik, J. 1. This is the third application for bail under Section 439 of Code of Criminal Procedure in the matter of arrest of the applicant in connection with Crime No. 30/09 for commission of offence under Sections 302/34, 120B of IPC, 25, 27 of the Arms Act read with Section 3(2) (v) of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989. 2. Shri Makhanlal Jatav, the then sitting MLA from Gohad was shot dead on 13.04.09 at about 20.00 hours. FIR was lodged by Shivraj in the intervening night of 13th and 14th April, 2009 at 0025 hours who was the security guard of Makhanlal Jatav. It was to the effect that the informant along with Balkrishna Dogra [Head Constable No. 524] was accompanying Makhanlal Jatav on white coloured Bolero vehicle bearing registration No. HR04-N0261. They reached at village Thare at about 19.15 hours. Their own vehicle and that of the candidate Bhagirath Prasad reached to the place of election meeting at village Thare for addressing. In addition to them, driver Devendra and maternal uncle of Makhanlal Jatav, namely, Banwarilal Jatav were also sitting inside the vehicle. Vehicle moved slowly. When it reached at the door of Ramesh Kushwah, the MLA was busy in conversation with the persons following the vehicle on feet. Suddenly, he heard a noise of two bullet fires. The MLA fell down on the right towards driver's side inside the vehicle. MLA was shifted to middle seat by them. Upper portion of right ear was bleeding and the MLA had become unconscious. Passersby fled away from the seen. A towel was wrapped on the injury and the MLA was brought by the same vehicle to Sahara Hospital where he was declared dead. The incident was seen by the said person and many other villagers. On the basis of this FIR, Crime No. 30/09 was registered against the unknown. 3. On 19.04.09, the applicant was arrested for the alleged offence and was chargesheeted on 06.07.09 by submission of challan. He is in custody since 19.04.09. 4. First application for bail [M. Cr.C No. 5014/09] was submitted by the applicant. During hearing, it was disclosed that CBI was further investigating in the matter and statements of number of witnesses were to be recorded. He is in custody since 19.04.09. 4. First application for bail [M. Cr.C No. 5014/09] was submitted by the applicant. During hearing, it was disclosed that CBI was further investigating in the matter and statements of number of witnesses were to be recorded. In this background, application for bail was dismissed as withdrawn with liberty to file afresh at appropriate stage. It was directed by this Court vide order dated 14.10.09 while allowing the withdrawal that the CBI shall conclude the investigation within a period of two months. Second application [M. Cr.C 8406/09] for bail was submitted which, too, was dismissed as withdrawn on 10.12.09. 5. It has been submitted on behalf of the applicant that the applicant was not named in the FIR. Statements of Shivraj, Balkrishna Dogra, driver Devendra and Banwarilal were recorded by the Police under Section 161 of Code of Criminal Procedure on various dates. None of them has made allegations against the applicant for committing or causing murder of Makhanlal Jatav. Copy of application dated 14.04.09 submitted by Arvind Kumar S/o Makhanlal Jatav is in the Court file which, too, does not contain any allegation against the applicant. 6. It is further submitted that Challan has already been filed. No incriminating material is submitted along with the Challan papers. In view of the aforesaid, it is submitted that the applicant is a practising law abiding advocate. He has no criminal background. He has not committed any offence and is in custody since 19.04.09 after his arrest. A prayer for his release on bail has been, therefore, made. 7. Case of the opposite party is that it is a case of contract killing. Call records of mobile phones do reveal that the applicant was constantly and continuously in touch with another accused, Mewaram who murdered Makhanlal Jatav. It is stated that the murder was committed at the instance of the applicant who on account of his behaviour was shifted from Gohad jail to Bhind jail. Since his two applications for bail were already dismissed, this being third successive application is liable to be dismissed. This apart, it has been informed that the case has already been transferred to Central Bureau of Investigation (CBI). 8. Learned Counsel for CBI informed this Court that after taking over the investigation of the case by CBI on 16.07.09 considerable progress has already been made. This apart, it has been informed that the case has already been transferred to Central Bureau of Investigation (CBI). 8. Learned Counsel for CBI informed this Court that after taking over the investigation of the case by CBI on 16.07.09 considerable progress has already been made. It has examined number of witnesses and has seized some important documents. 9. This Court has gone seriously through the Challan papers & the case diary. Statements of Arvind Kumar S/o deceased Makhanlal Jatav and Smt. Sheela Devi W/o deceased Makhanlal Jatav were recorded by the Police [copies thereof are contained in Challan papers]. They, too, have not made allegations against the applicant for committing or causing murder of Makhanlal Jatav. They have not levelled aspersions on the applicant for causing murder of Makhanlal Jatav by contract killing. It is not understandable from Challan papers that what did prevent the prosecution from making inclusion of cogent evidence (if any) in the Challan papers which could have ex facie proved the nexus between the applicant and Mewalal, the accused for committing the murder. 10. It is true that it is the third application for bail but the earlier two applications were not decided on merits and therefore there was no consideration of the factors relevant for grant or refusal of bail application. Hon'ble Apex Court of India in the case of Babu Singh and Ors. v. The State of Uttar Pradesh AIR 1978 SC 527 has observed: 2. ...But an order refusing an application for bail does not necessarily preclude another, on a later occasion, giving more materials, further developments and different considerations. While we surely must set store by this circumstance, we cannot accede to the faint plea that we are barred from second consideration at a later stage. An interim direction is not a conclusive adjudication, and updated reconsideration is not over turing an earlier negation. In this view, we entertain the application and evaluate the merits pro and con. Repeated bail applications are also found permissible in the facts and circumstances of the case in a recent judgment of the Hon'ble Supreme Court of India in the case of Rajesh Ranjan Yadav alias Pappu Yadav v. CBI through its Director (2008) 1 SCC 667 In view of the aforesaid, this Court does not feel to be precluded from consideration of the third application on merits. 11. 11. Exercise of Court's discretion with regard to grant of bail is to be exercised in a judicious manner by cogent reasons and not as a matter of course. Factors to be taken into consideration in this regard cannot be laid down exhaustively, however, the illustrative considerations have been enumerated by Hon. Supreme Court of India in the case of Ram Govind Upadhyay v. Sudarshan Singh and Ors. (2002) 3 SCC 598 . Mode of exercise of such powers and the illustrative relevant considerations have been described by the Hon. Apex Court in the case of Ram Govind Upadhyay (Supra) in the following paragraphs: 3. Grant of bail though being a discretionary order - but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts, however, do always vary from case to case. While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always to be coupled with other circumstances warranting the grant of bail. The nature of the offence is on of the basic considerations for the grant of bail - more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter. 4. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture, though however, the same are only illustrative and not exhaustive, neither there can be any. The considerations being: (a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations. (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail. (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail. (c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge. (d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. Hon. Apex Court in the case of Sudha Verma v. State of U.P. and Anr. AIR 2007 SCW 5598 has observed: 12. There is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. It is necessary for the courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are: 1 The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; 2 Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; 3 Prima facie satisfaction of the Court in support of the charge. 12. Application for bail is now being considered in the light of Challan papers keeping in mind the aforesaid considerations. Undisputably, murder is a heinous crime and an accused of such a crime is not to be released lightly provided there is incriminating material against such an accused in the eyes of law. Similarly, freedom of an innocent person is also equally important since his right to liberty is guaranteed under the Constitution of India. Hon. Supreme Court of India in the case of Babu Singh and Ors. v. The State of Uttar Pradesh AIR 1978 SC 527 has clearly observed: 8. Similarly, freedom of an innocent person is also equally important since his right to liberty is guaranteed under the Constitution of India. Hon. Supreme Court of India in the case of Babu Singh and Ors. v. The State of Uttar Pradesh AIR 1978 SC 527 has clearly observed: 8. ...Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the crucial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorise impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by 'law'. The last four words of Article 21 are the life of that human right. Coming to the Challan papers, it may be seen that the deceased Makhanlal Jatav was accompanied by his security guard Shivraj, Balkrishna Dogra [Head Constable No. 524], driver Devendra and Banwarilal Jatav, maternal uncle of the deceased. Statements of all these persons were recorded by the Police under Section 161 Code of Criminal Procedure on various dates. This Court does not find any allegation in these statements against the applicant for causing murder of Makhanlal Jatav. Application dated 14.04.09 submitted by Arvind Kumar S/o deceased Makhanlal Jatav does not contain any allegation against the applicant for causing murder by contract killing. Statements of Arvind Kumar as well as of Smt. Sheela Devi were recorded by the Police wherein no allegation is found to have been made against the applicant for causing murder of Makhanlal Jatav. There are details of phone calls which have been highly relied on by the prosecution to contend that the murderer, namely, Mewaram was constantly and continuously in touch with the applicant on mobile. Admittedly, the applicant is a practising lawyer. This being so, it cannot be treated as a strange event if a criminal contacts him on phone which may be for seeking protection from court of law. 13. At this stage, it is informed by Shri Ankur Mody, learned Assistant Solicitor General of India appearing on behalf of Central Bureau of Investigation (CBI) that it's investigation is almost complete and a supplementary chargesheet is likely to be submitted by CBI. 13. At this stage, it is informed by Shri Ankur Mody, learned Assistant Solicitor General of India appearing on behalf of Central Bureau of Investigation (CBI) that it's investigation is almost complete and a supplementary chargesheet is likely to be submitted by CBI. He has further stated at bar that certain incriminating material has been discovered/traced out by the CBI during investigation against the applicant which would be produced with the supplementary chargesheet. Since material produced by the prosecution alone is to be considered for charge as per the decision of the Hon'ble Supreme Court of India in the case of State of Orissa v. Debendra Nath Padhi (2005) 1 SCC 568 , this Court at the present juncture does not feel it proper to take into consideration the material available with the CBI which is not the part and parcel of the Challan papers submitted against the applicant. Since the investigation as per the statement of CBI is almost complete, there is least likelihood of tampering with the evidence. 14. It is true that the applicant was shifted from Gohad Jail to Bhind Jail but there is no material on record as well as with the prosecution to prima facie establish that such shifting was on account of apprehension of threat to the complainant or witnesses of the prosecution. 15. It cannot be lost sight of that the applicant was not present at the place of occurrence. He was not named in the FIR. None of the persons present at the place of occurrence has referred to the name of the applicant as a person involved in the commission of murder of Makhanlal Jatav. Arvind Kumar [S/o deceased Makhanlal Jatav] as well as Smt. Sheela Devi [Wd/o deceased Makhanlal Jatav] have also not made any allegation against the accused for causing the murder in question. Deceased Makhanlal Jatav was a sitting MLA whereas the applicant was not in the fray of the seat for ML Aship. No criminal history of the applicant has been established by the prosecution. Applicant is a practising lawyer and might have received phone calls even from the accused Mewaram for seeking protection from the Court of Law. Particulars of conversation between the applicant and Mewaram are not on record. Applicant is in custody from 19.04.09. No criminal history of the applicant has been established by the prosecution. Applicant is a practising lawyer and might have received phone calls even from the accused Mewaram for seeking protection from the Court of Law. Particulars of conversation between the applicant and Mewaram are not on record. Applicant is in custody from 19.04.09. Shivraj, Balkrishna Dogra [Head Constable No. 524], driver Devendra and Banwarilal Jatav, maternal uncle of the deceased stated that it was Lal Singh Arya who shouted "Kill Makhan" "Let him not escape". Aforesaid evidence available in the prosecution's record does not support prima facie the involvement of the applicant in the offence of murder directly or as a contract killer. 16. In the facts and circumstances of the case revealed in the Challan papers and the case diary but without expressing any opinion on the merits of the case, this Court feels it proper to grant bail to the applicant in the following manner: It is directed that the applicant be released on bail on his furnishing a personal bond in the sum of Rs. 1,00,000/-(Rs. One Lac Only) with two solvent sureties of Rs. 50,000/-each in the like amount to the satisfaction of the Trial Court for his regular appearance in the trial court during trial subject to following conditions: (i) that he will not leave the municipal limits of Gohad without obtaining leave from the court of Special Judge, Bhind (M.P.), however, it is made clear that he would be permitted to attend the dates of hearing before the court of Special Judge, Bhind (M.P.); (ii) that he will give appearance before the Police Station Endori, District Bhind (M.P.) at 11 am on every Sunday; (iii) that he will make himself available for investigation of the case, if required, and will co-operate the CBI; (iv) that he shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected; and (v) that he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. 17. It is an admitted position that the investigation by CBI was already ordered which took over the investigation of the case on 06.07.09. 17. It is an admitted position that the investigation by CBI was already ordered which took over the investigation of the case on 06.07.09. According to Shri Ankur Mody, learned Assistant Solicitor General of India appearing on behalf of Central Bureau of Investigation (CBI), CBI's investigation is almost complete. 18. Section 173(8) of Code of Criminal Procedure makes a provision for further investigation. Hon. Supreme Court of India in Dinesh Dalmia v. CBI (2007) 8 SCC 770 has observed: 20. Indisputably, the power of the investigating officer to make a prayer for making further investigation in terms of Sub-section (8) of Section 173 is not taken away only because a charge-sheet under Sub-section (2) thereof has been filed. A further investigation is permissible even if order of cognizance of offence has been taken by the Magistrate. Similarly, in case of defective Challan, permission for further investigation may be obtained as observed by the Apex Court in Hasanbhai Valibhai Qureshi v. State of Gujarat and others (2004) 5 SCC 347 and Bhupinder Singh and Ors. v. Jarnail Singh and Ors. (2006) 6 SCC 277 . Similarly, second FIR and further investigation by CBI is also permissible as observed by the Hon. Apex Court in Nirmal Singh Kahlon v. State of Punjab and Ors. (2009) 1 SCC 441 . It is has further been submitted that the supplementary charge sheet is likely to be submitted by CBI. In view of the aforesaid, it is hereby further observed that the order of this Court shall become operative after two weeks from the date of order. In the meantime, CBI is at liberty to make arrest of the applicant although he is in police custody in the crime registered by the CBI against him, in case if CBI is in possession of incriminating material against the applicant. CBI has undoubtedly powers of arrest, if upon investigation incriminating material has been found by it against the applicant. In case of such an arrest and/or filing of supplementary chargesheet against the applicant, this order would cease to operate and the applicant would be required to move a fresh application for seeking bail in accordance with law. It is made clear that any observation made herein is meant for providing reasons for order and will not amount to appreciation of evidence on record. It is made clear that any observation made herein is meant for providing reasons for order and will not amount to appreciation of evidence on record. The same shall not affect the merits of the case, which are to be established before the Court trying the case in accordance with law. 19. M. Cr.C., thus, stands disposed of.