Pappan vs State of U.P.

Vijay Kumar Verma, J.—Prayer for bail in this 3rd bail application has been made on behalf of the applicant Pappan S/o Parashuram, who is facing trial in S.T. No. 1053 of 2007 arising out of Case Crime No. 15 of 2007 under Sections 460 and 411, I.P.C., P. S. M. M. Gate, District Agra.

Criminal Misc. 1st Bail Application No. 12632 of 2007 was decided on merit by Hon''ble Shiv Charan, J., (since retired on superannuation) vide order dated 7.8.2007, whereby the bail application was rejected. Thereafter, Criminal Misc. 2nd Bail Application No. 24877 of 2008 was moved, which was rejected for want of prosecution vide order dated 21.5.2008, passed by Hon''ble A. K. Roopanwal, J.

An F.I.R. was lodged on 13.2.2007 by the complainant Sudhir Kumar Aggarwal S/o Jagdish Prasad Agarwal at P.S. M.M. Gate, Agra, where a case u/s 460, I.P.C. was registered at Crime No. 15 of 2007 against unknown persons. The averments made in the F.I.R., in brief, are that workshop of the complainant for manufacturing silver wire is situated at Noori Gate, Agra. As usual, the workshop was closed on 11.2.2007 at about 8.00 p.m. At that time, the complainant had left Sahab Singh resident of Village Bahare and chaukidar Toran Singh at the workshop, who had bolted the channel gate from inside. Due to weekly holiday in the market on Monday, nobody went on the workshop. On 13.2.2007, the complainant alongwith the partner Umesh Chandra reached workshop at about 9.00 a.m. and called the chaukidar to open the door, but there was no response, on which the complainant informed the police and nearby persons. When shutter gate of the workshop was broken by the police and all the people went inside, they saw that both chaukidar and employee of workshop were lying dead. A hole (Naqab) was made in the behind wall. Some unknown thieves appeared to have committed theft and after committing the murder of deceased persons, the thieves had carried some cash and silver scrap. After investigation, charge-sheet was submitted against the applicant and other persons and on the case being committed to the Court of Session for trial, S.T. No. 1053 of 2007 has been registered, in which the accused persons including the applicant are facing trial.

Heard S/Shri G. S. Hajela and Mithlesh Kumar Shukla, advocates appearing for the applicant and A.G.A. for the State.

Certain arguments on merit of the case were made by Sri G. S. Hajela and it was submitted by him that the applicant has been made accused in present case merely on the basis of recovery of silver wire, whereas according to the F.I.R., no wire of silver was stolen from the workshop and only the silver scrap is alleged to have been stolen in the fateful night by unknown thieves.

It was also submitted by learned Counsel that on the basis of the recovery of silver wire on the pointing out of applicant, offence u/s 411, I.P.C. only would be made out, which is triable by Magistrate and hence, the applicant Pappan, who is languishing in jail since 19.2.2007 should be granted bail, as due to delay in trial, his fundamental right of speedy trial envisaged under Article 21 of the Constitution is being violated.

Last submission made by learned Counsel was that in S.T. No. 1053 of 2007 statement of the complainant Sudhir Kumar Agarwal has been recorded on 21.7.2008, but he has not supported the case of the prosecution regarding recovery of alleged silver wire on the pointing out of the applicant and hence, due to change in circumstances, applicant deserves bail. For this submission, my attention was drawn towards the copy of the statement of the complainant Sudhir Kumar Agarwal (Annexure SA-1 to the supplementary-affidavit dated 4.8.2008). It was also submitted in this context by the learned Counsel for the applicant that on the basis of the statement of complainant, recovery of alleged silver wire on the pointing out of the applicant has become false and since the applicant is neither named in the F.I.R. nor he was put to identification during investigation in Test Identification Parade, hence applicant deserves bail now.

The bail application was opposed by learned A.G.A. on the ground that there are eye-witnesses also, who had seen the applicant and other accused persons going towards the workshop, where incident had taken place, in the fateful night and hence, merely on the basis of examination of one witness, the applicant should not be granted bail in this 3rd bail application, because second or subsequent bail application is not maintainable on the grounds which were available at the time of dismissal of the first bail application.

Having given my thoughtful consideration to the rival submission made by the parties counsel, in my opinion, the applicant does not deserve bail merely because the complainant has not supported the theory of recovery of silver wire on the pointing out of the applicant.

The other arguments which were made by learned Counsel for the applicant cannot be considered in this third bail application, because second or subsequent bail application is not maintainable on the grounds which were available at the time of disposal of first bail application.

The matter of maintainability of second or subsequent bail application on the grounds, which were available at the time of rejection of first bail application was considered by Division Bench of this Court in Satya Pal v. State of U. P. (XXXVII) 1998 ACC 287: 1998 (2) ACR 1264. The following question was referred by the single Judge to be decided by larger Bench:

Whether a fresh argument in a second bail application for an accused should be allowed to be advanced on those very facts that were available to the accused while the first bail application was moved and rejected.

Before the learned single Judge reliance was placed on the decision of a learned single Judge of this Court in the case of Gama and Anr. v. State of U. P.(XXIII) 1986 ACC 339: 1986 ACR 481. The learned single Judge in paragraph 5 of his judgment observed as follows:

I am conscious that order on a bail application need not be detailed one but as the legal points were argued from both sides which require a bit detail discussion. After hearing the counsel for the parties at considerable length, the first point for determination is as to whether the arguments advanced by the learned Counsel for the applicants about the statements of most of the prosecution witnesses being recorded u/s 164 of the Code was considered in the first order disposing of the bail application or not. Suffice it to say that the right of bail is statutory right, rather it is a constitutional right. Even though it may be second or third bail application, but unless it is apparent from a reading of the first bail order that the point urged in the subsequent bail applications was also considered and rejected, it cannot be said that the point urged in the second or third bail application would be deemed to have been considered in the first bail application just by implication.

Having considered the decisions of Hon''ble Apex Court in State of Maharashtra v. Buddhikota Subba Rao (XXVI) 1989 ACC 503 and Babu Singh and Others Vs. State of U.P., as well as Shahzad Hasan Khan v. Ishtiaq Hasan Khan (XXIV) 1987 ACC 425: 1987 ACR 494, the Bench consisting of Hon''ble Girdhar Malviya and Hon''ble K. D. Sahi, JJ., has 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 view expressed by the Hon''ble single Judge in Gama v. State of U. P. (supra), was overruled by the Division Bench.

The matter of maintainability of second and subsequent bail application was considered by the Hon''ble Apex Court in Kalyan Chandra Sarkar etc. v. Rajesh Ranjan alias Pappu Yadav and Anr. (LI) 2005 ACC 727: 2005 (1) ACR 715 by Court are it of in that this The can 20 mentioning:>< worth report 19 paras Apex Hon?ble made observations following law. or circumstances change grounds fresh some moved application bail subsequent second stated well very case, decision basis On> 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 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. (Italicising is our) 20. The decisions given by a superior forum, undoubtedly, is binding on the subordinate fora 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 his 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.

Keeping in view aforesaid observations made by the Hon''ble Apex Court, this 3rd bail application cannot be considered by this Court on those grounds, which were available at the time of disposal of 1st bail application.

It is true that the complainant Sudhir Kumar Agarwal has stated in his statement dated 21.7.2008 recorded in S.T. No. 1053 of 2007 in the Court of Addl. Sessions Judge, Agra that he was not present at the time of recovery of silver wire on the pointing out of the applicant, but in my considered opinion merely on the basis of this statement of complainant, the applicant cannot be released on bail in this 3rd bail application. The reason for my coming to this conclusion is that other witnesses of recovery of silver wire have yet to be examined in S.T. No. 1053 of 2007. Recovery of silver wire (scrap) was made by the Investigating Officer with the help of other police personnel. Those witnesses have not yet been examined, as copies of their statement have not been filed with the bail application. During investigation, statements of the witnesses Amit S/o Suresh Chandra Sharma and Ravi S/o Brahma Nand were recorded by the Investigating Officer. They also have not been examined so far. Before trial court, the complainant Sudhir Kumar Agarwal had identified the recovered stolen property. Therefore, merely because the property which was identified by this witness was not recovered in his presence, the applicant cannot be admitted to bail at this stage without examination of other witnesses of recovery.

In my considered opinion, on the basis of the long incarceration in jail also, the applicant cannot be admitted to bail in this heinous crime. In this context, reference may be made to the case of Pramod Kumar Saxena v. Union of India and others (LXIII) 2008 ACC 115: 2008 (3) ACR 3216, in which the Hon''ble Apex Court has held that mere long period of incarceration in jail would not be per se illegal. If the accused has committed offence, he has to remain behind bars. Such detention in jail even as an under-trial prisoner would not be violative of Article 21 of the Constitution.

For the reasons mentioned hereinabove, the third bail application of the applicant Pappan is hereby rejected.

The trial court is directed to conclude the trial of the applicant within a period of six months applying the provisions of Section 309, Cr. P.C. and avoiding unnecessary adjournments.

The S.S.P., Agra is also directed to depute special messenger to procure the attendance of the witnesses after obtaining their summons from the trial court concerned and it must be ensured that the witnesses are produced in the trial court for evidence without causing any delay.

The office is directed to send a copy of this order within a week to the trial court concerned and S.S.P., Agra for necessary action.