Nipendra Singh vs State of U.P.

K.N. Ojha, J.—This is second bail application moved by Nipendra in Case Crime No. 1400/2005 u/s 302 IPC, Police Station Haldaur, district Bijnor.

The first bail application was rejected by this Court in Criminal Misc. Bail Application No. 3603 of 2006 on 2.3.2006.

Heard Sri Arun Kumar Singh learned Counsel for the applicant, learned AGA and have gone through the record.

According to prosecution Kulbeer Singh lodged FIR against applicant and one Vikram Singh u/s 302 IPC on 12.11.2005 at 8.30 p.m. in respect of the occurrence which is said to have taken place on the same day about 5.15. p.m. It is said that Kulbeer Singh had gone from his village Jalalpur to market Heemapur alongwith Piyush Kumar and Vimal Kumar. After purchasing articles they were going back. He started to talk with his son Akshey Kumar, when Vikram Singh and Nipendra Singh came there and on exhortation of Vikram Singh, Nipendra Singh with country made pistol fired on Vimal Kumar. Both the accused fired and left the place. Vimal Kumar was carried to District Hospital, Bijnor where he was declared dead. One gunshot wound was found on chest of Vimal Kumar aged about 25 years alongwith it''s corresponding wound on right of chest, one abrasion was also found on the body of Vimal Kumar.

In the First Bail Application it was argued by learned Counsel for the applicant that there was no motive to commit murder, no blood was found on the spot. There was no evidence that they were coming back from market and there is no independent witness of the occurrence. It was also argued that pellet crossed the chest but no blood was found on the ground. After considering these arguments speaking order was passed and bail application was rejected.

By moving instant second Bail Application it has been submitted by learned Counsel for the applicant that there was no motive to the applicant to commit murder of Vimal Kumar. No article which was purchased from market and which was being carried by the victim and the witness was found on the spot. It is also submitted that according to prosecution fire was made from country made pistol of 12 bore but single bullet crossed the body resulting into the death of Vimal Kumar, it means the applicant had not fired on the victim.

Learned AGA submits that the point of motive was discussed in the First Bail Application also, Devendra brother of applicant was murdered and applicant suspected involvement of Vimal Kumar in such murder. If some persons were coming after making purchase from the local market and murder was committed those purchased articles were neither exhibits nor evidence of the case. Therefore, if the witnesses went alongwith those purchased articles and Investigating Officer did not take vegetable and other articles in custody it does not show any weakness in the prosecution evidence.

Occurrence is said to have taken place on 12.11.05 and 12-bore country made pistol is said to have been recovered from the possession of the applicant on 17.11.05. Besides it cartridge of 12 bore is said to have been found on the spot. FIR shows that while running away from the place Vikram Singh and applicant Nipendra both had fired. In FIR it is not written that country made pistol with which the applicant had fired was of 12 bore or 3.15 bore. In recovery memo copy of which has been filed by learned Counsel for the applicant it is not written that the applicant had confessed that this recovered country made pistol was used in murder. The recovery memo speaks that it was recovered from the possession of the applicant.

While hearing argument this Court made observation that summoning of the record will specify as to whether this country made pistol was used in commission of the crime or not and the statement of prosecution witnesses which has been recorded uptil now and report of Ballistic Expert if any may be of some help. But learned Counsel for the applicant has submitted that summoning of the record will delay final disposal of the trial, hence it be not summoned.

The ground, which has been taken in Second Bail Application, was available to the applicant at the time of disposal of the First Bail Application. The ground available at the time of disposal of First Bail Application will not be taken to be a new fact for moving Second Bail Application. The Second Bail Application is maintainable on new developments or new facts and not on new ground based on the facts, which already existed at the time of disposal of First Bail Application.

The position of law has been made clear in Satya Pal Vs. State of U.P., wherein this Division bench has specified the law that fresh argument in Second Bail Application on same facts, which were available in earlier bail application, cannot be allowed. In AIR 1979 SC 2292 State of Maharashtra v. Captain Buddhikota Subha Rao it has been laid down by Hon''ble Apex Court that:

The personal liberty of an individual can be curbed by procedure established by law. The Code of Criminal Procedure, 1973, is one such procedural law. That law permits curtailment of liberty of anti-social and anti-national elements. Art. 22 casts certain obligations on the authorities in the event of arrest of an individual accused of the commission of a crime against society or the nation. In cases of under-trials charged with the commission of an offence or offences the court is generally called upon to decide whether to release him on bail or to commit him to jail This decision has to be made, mainly in non-bailable cases, having regard to the nature of the crime, the circumstances in which it was committed, the background of the accused, the possilbity of his jumping bail, the impact that his release may make on the prosecution witnesses, its impact on society and the possibility of retribution etc.

In the instant case the successive bail applications preferred by the accused were rejected by the High court on merits having regard to the gravity of the offence alleged to have been committed under Official Secrets Act 1923, and Atomic Energy Act 1962. Undeterred the accused went on preferring successive applications for bail. All such pending bail applications were rejected by the single Judge of the High Court by a common order. However he was not aware of the pendency of yet another bail application filed by the accused. Immediately two days thereafter the accused moved another single Judge of the High Court, who directed that the accused be enlarged on bail for a period of two months on his furnishing security in the sum of Rs. 10,000/= with one surety on certain terms and conditions. Between the two orders there was a gap of only two days and it was nobody ''s case that during those two days drastic changes had taken place necessitating the release of the accused on bail.

Held, the order granting bail was not proper and liable to be set aside. Judicial discipline, propriety and comity demanded that the order granting bail should not have been passed reversing all earlier orders including the one rendered by the single Judge of the same High Court only a couple of days before, in the absence of any substantial change in the fact situation. In such cases it is necessary to act with restraint and circumspection so that the process of the Court is not abused by a litigant and an impression does not gain ground that the litigant has either successfully avoided one Judge or selected another to secure an order, which had hitherto eluded him. In such a situation the proper course, is to direct that the matter be placed before the same Judge who disposed of the earlier applications. Such a practice or convention would prevent abuse of the process of court inasmuch as it will prevent an impression being created that a litigant is avoiding or selecting a court to secure an order to his liking. Such a practice would also discourage the filing of successive bail applications without change of circumstances, such a practice if adopted would be condusive to judicial discipline and would also save the Court ''s time as a Judge familiar with the facts would be able to dispose of the subsequent application. It will also result in consistency.

In view of the above position of law and the circumstances of the case this is not a fit case in which Second Bail Application moved by Nipendra be allowed.

It is a broad daylight occurrence. FIR was promptly lodged and applicant was named in the FIR. He is the main accused of the crime in murder of Vimal Kumar. Therefore, the Court does not find it appropriate to enlarge applicant on bail. The Second Bail Application for bail is rejected.