Ajeet vs State of U.P.

Naheed Ara Moonis, J.—Heard Sri V.C. Misra, learned senior advocate assisted by Sri Vivek Misra, learned counsel for the applicant, Sri C.S. Kushwaha, and learned A.G.A. and have been taken through the record. This is the second bail application moved on behalf of the applicant vide Case Crime No. 1291 of 2008 under Sections 302/452/504/506. I.P.C. Police Station New Mandi District Muzaffar Nagar. The first bail application was rejected by another Bench of this Court vide order dated 9.6.2009.

The genesis of the prosecution case in a short compass is that on 1.7.2008 at about 1.00 p.m. the informant Dheeran Singh was going at the house of Suresh with his wife Phool Kumari and son Desh Bandhoo. As soon as they reached in front of the house of Suresh, accused persons Bosi, Anil, Pramod, Ajeet (applicant) and Teenu armed with fire arms hurled abusive and vituperative words unleashing a reign of terror. The complainant alongwith his wife and son entered in the house of Suresh to save their life. All the accused persons forcibly entered in the house of Suresh. The accused persons Bosi and Tinu caught hold of Desh Bandhoo, the son of the complainant. The accused persons Ajeet, Anil and'' Pramod started indiscriminate firing which hit to Desh Bandhoo. The victim Desh Bandhoo died on the spot. This incident was witnessed by the complainant, his wife Phool Kumari, Suresh, Anarkali and others. The accused persons disappeared from the place of occurrence extending threats with dire consequences. The first information report was lodged on the same day, i.e., 1.7.08 at 2.15 p.m. vide Case Crime No. 1291 of 2008 u/s 147/148/149/302/452/504/506, I.P.C. read with Section 3 (2) (v) S.C. and S.T. Act Police Station New Mandi District Muzaffar Nagar.

It is submitted by the learned counsel for the applicant that the first bail application moved on behalf of the applicant was rejected by the Hon''ble single Judge without considering the facts and circumstances and delving into the merit of the case. The second bail application has been filed long back, i.e. on 14.10.2009. The applicant is languishing in jail since 8.7.2008. The said application is pending since then whereby right to liberty of the accused applicant has been curtailed while Article 21 of the Constitution of India envisages that personal liberty has an important role to play in the life of every citizens. The applicant is being deprived of personal liberty on account of pendency of the bail application which is violative of Article 21 of the Constitution of India. The statement of witnesses namely Suresh and Phool Kumar are inconsistent with the prosecution case. According to the post-mortem report, there are two gun shot injuries. It cannot be deciphered as to who had caused the gun shot injury to the victim. General role of firing has been attributed to all the accused persons. Right of bail is not only statutory right rather it is constitutional right even though It may be second or third bail application moved on the same ground which were available at the time of rejection of the first bail application. There is no bar to move second or subsequent bail applications even on those grounds which were available at the time of disposal of the first bail application and if arguments about those grounds were not advanced at the time of disposal of first bail application. There is material contradiction in the prosecution version and the post-mortem report which creates doubt about its veracity. Speedy trial is the fundamental right of the accused but the trial is not proceeding swiftly the provision inserted in Article 21 of the Constitution.

Per contra learned A.G.A. contended that all the grounds taken in the second bail application were available at the time of disposal of the first bail application, hence on those very grounds, the second bail application is not maintainable and deserves to be rejected outright. The Hon''ble single Judge has dealt with all the points urged and argued at the time of disposal of the first bail application and the second bail application has been moved on the same grounds which were taken in the earlier bail application.

I have given anxious consideration advanced by the learned counsel at the bar. The matter of maintainability of second and subsequent bail application on the ground which were available at the time of rejection of first bail application was elaborated in Satya Pal Vs. State of U.P., whereby the view expressed by the Hon''ble single Judge in Gama and Another Vs. State of Uttar Pradesh, was overruled.

The Division Bench consisting of Hon''ble Justice Girdhar Malaviya and Hon''ble K.D. Shahi relying upon the decision of the Apex Court in State of Maharashtra a Baddhikota Sudha Rao, 1989 (26) ACC 503 (SC) and Babu Singh and Others Vs. State of U.P., , held that second bail application for an accused cannot be allowed to be advanced on those very facts that were available to the accused while the first bail application was moved and rejected. The Hon''ble Apex Court in Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav and Another, has considered the maintainability of the second and subsequent bail application. Following observations made by the Apex Court in paras 19 and 20 are delineated here-in-under:

The principles of res-judicata and such analogous principles although are not applicable in a criminal proceedings, still the courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our country. The findings of a higher Court or a co-ordinate Bench must receive serious consideration at the hands of the Court entertaining a bail application at a later stage when the same had been rejected earlier. In such an event, the Courts must give due weight to the grounds which weighed with the former or higher Court in rejecting the bail application. Ordinarily, the issue which had been canvassed earlier would not be permitted to be re-agitated on the same grounds, as the same would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting.

The decisions given by a superior form, undoubtedly, is binding on the subordinate forum on the same issue even in bail matters unless of course, there is a material change in the fact situation calling for a different view being taken. Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused, who has been denied bail earlier, can move a subsequent application. Therefore, we are not in agreement with the argument of learned counsel for the accused that in view the guarantee conferred on a person under Article 21 of the Constitution of India, it is open to the aggrieved person to make successive bail application even on a ground already rejected by courts earlier including the Apex Court of the country.

In view of the aforesaid decision, it is well-settled that second and subsequent bail application can be moved on the fresh ground or in changed circumstances. In the case in hand second bail application is not legally maintainable as no fresh ground was shown in the second bail application or at the time of argument. The grounds which were urged and advanced at the time of disposal of the first bail application could not be opened to be re-agitated on the same ground as it would lead to a speculation and uncertainty. This issue has been dealt with by the Apex Court in the matter of Kalyan Chandra Sarkar (supra). The only point for examining second bail application in the case has been urged that the applicant is in jail since 8.7.2008. It is now well-settled that where earlier bail application was rejected, can be raked up if there is change in the fact situation or in law which requires the earlier view to be interfered with or where the earlier finding has become obsolete. The argument of learned counsel for the applicant that the detention of the applicant is violative of Article 21 of the Constitution of India and it is always open to the applicant to make successive bail applications even on a ground already rejected by the Courts earlier cannot be accepted. Mere long incarceration cannot be a ground for admitting the accused applicant on bail who is involved in a heinous and gruesome crime. In this regard in the matter of Pramod Kumar Saxena Vs. Union of India (UOI) and Others, , it has categorically been held that mere period of long incarceration would not be per se illegal. If the accused has committed the offence, he has to remain behind the bars. Such detention in jail even as under trial prisoner would not be violative of Article 21 of the Constitution of India. For the reasons elaborated here-in-above, this Court is not inclined to admit the applicant on bail. Resultantly, the second bail application of the applicant is hereby rejected. However, it is provided that the trial court will make earnest endeavour to conclude the trial as provided u/s 309, Cr. P.C. expeditiously If possible within a period of six months avoiding unnecessary and flimsy adjournments.