Dharam Pal and others vs State of U.P.

Vijay Kumar Verma, J.—This 2nd bail application has been moved on behalf of the appellantaccused Rajveer, who has been convicted under section 302 read with section 34 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1, 50, 000/ by the judgment and order dated 23.11.2007, passed by the Additional Sessions Judge, Court No. 4, Ghaziabad, in S.T. No. 291 of 1997 (State v. Dharampal and others''). By the same judgment the appellants Dharampal and Sudhir were also convicted and sentenced as mentioned above.

1st bail application of all the appellants was considered by a Division Bench, in which one of us (Vijay Kumar Verma, J.) was a member vide order dated 13.2.2008, whereby the appellants Dharampal and Sudhir were admitted to ban, but the prayer for bail of the applicantappellant Rajveer was rejected.

We have heard Sri D.N. Wall, learned Senior Advocate, assisted by Sri Lov Srivastava Advocate appearing for the appellantapplicant, Sri V.K. Mishra learned Additional Government Advocate for the State and perused the record.

Before coming to the arguments advanced by the parties Counsel on the second bail application, we would like to refer the case of Kalyan Chandra Sarkar etc. v. Rajesh Ranjan @ Pappu Yadav, 2005 (51) ACC 727 in which the Hon''ble Apex Court has held that "a person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In such cases, if the circumstances then prevailing require that such person be released on bail, in spite of his earlier applications being rejected, the Court can do so". In paras 19 and 20 of the report at page 732, the following observations have been made by the Hon''ble Apex Court:

"19. 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 coordinate 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 issues which had been canvassed earlier would not tie permitted to be reagitated 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. (italics is our)

The decisions given by a superior forum, undoubtedly, is binding on the subordinate for 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 guaranty conferred on a person under Article 21 of the Constitution of India, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by Courts earlier including the Apex Court of the country." (italics is our)

Keeping in view the abovementioned observations made by the Hon''ble Apex Court, we now come to the submissions made by the learned Counsel for the applicantappellant Rajveer. Certain arguments touching the merit of the case were advanced by Sri D.N. Wali, learned Senior Advocate, but his main contention was that if the entire prosecution version is accepted to be true on its face value, the case would not travel beyond section 304 IPC and hence on this ground the applicant is entitled to be released on bail. The contention of Mr. Wali was that the deceased sustained fire arm injuries on his thigh and hence the offence of murder punishable under section 302 IPC would not be made out in this case. Although this matter will be considered at the time of deciding the appeal, but assuming for the sake of argument at this stage that the offence under section 304 IPC is made out in this case, even then in our considered opinion, the applicant Rajveer does not deserve bail in this second bail application, because neither there is any change in the fact situation, nor any law has been changed due to which the earlier order passed by another Division Bench can be said to be obsolete. The offence under section 304 IPC is not bailable and hence the contention of Sri D.N. Wali that the applicant is entitled for bail under this section can not be accepted. In this regard, we would like to make reference of an order passed by the Hon''ble Apex Court on 10.9.2008 in Crl. Appeal Nos. 14521455 of 2008 (arising out of S.L.P. (Crl.) Nos. 59565959 of 2008) and Crl. Appeal Nos. 14561457 of 2008 (arising out of S.L.P.(Crl.) Nos. 62446245 of 2008). The said order has been passed in Uphar Cinema Tragedy case of Delhi. In that case, the Trial Court had convicted the accused Nirmal Singh Chopra and Ajit Chaudhary, under section 304 read with section 36 IPC and sentenced them to undergo rigorous imprisonment for a period of seven years 2nd to pay a fine of Rs. 5000/ each with default stipulation. Both the accused preferred appeal in Delhi High Court, which had granted bail to them during pendency of the appeal. The Association of victims of Uphar Cinema Tragedy went to the Apex Court by filing Special Leave Petitions and above mentioned criminal appeals in which an order was passed by the Hon''ble Apex Court on 10.9.2008, whereby the bail granted to the appellantsaccused Nirmal Singh Chopra and Ajit Chaudhary by Delhi High Court has been cancelled holding that the High Court was not justified in granting bail of these appellants, who have been v. convicted under section 304 read with section 36 IPC. In the same case, the accused Sushil Ansal and Gopal Ansal were convicted under sections 304A, 337, 338 all read with section 36 IPC and they were sentenced accordingly. All these offence are bailable, but keeping in view the conduct of these accused after grant of bail during trial, the Hon''ble Apex Court cancelled their bail also.

Therefore, for the reasons mentioned hereinabove, we do not find any justified ground to release the applicantappellant Rajveer on bail and that too in second bail application, which is devoid of any merit.

Consequently, the 2nd bail application is rejected. Any observation by us in this order would not affect the merit of the case at the time of hearing of appeal.

The office is directed to prepare four typed copies of the paper book within two months and list the appeal for hearing immediately thereafter.