Shiv Pal Singh @ S.P. Singh vs The State of U.P.

Raj Mani Chauhan, J.—Heard Sri I.B. Singh, Senior Advocate appearing on behalf of the accused applicant and Sri Kunwar Mridul Rakesh, learned Special Public Prosecutor appearing on behalf of the State as well as perused the documents available on record.

The accused applicant Shiv Pal Singh @ S.P. Singh (at present member of U.P. Legislative Council), son of Late Sri Ram Lal Singh, resident of 28, Bajrang Nagar, Police Station Krishna Nagar, Lucknow; permanent resident of Sadarpur, Police Station Bilgram, District Hardoi is involved and detained in Case Crime No. 178 of 2006, under Sections 302, 120B I.P.C., from Police Station Ashiyana, District Lucknow and he is facing trial in S.T. No. 341 of 2007; State v. Shiv Bahadur Singh and Ors., under Sections 302, 120B I.P.C., pending in the Court of learned Additional Sessions Judge, Court No. 1, Lucknow which has arisen out of the charge sheet filed by the Investigating Officer in the case crime referred above. The accused applicant moved the first bail application before this Court which was allowed by the another Bench of this Court, vide order dated 8.3.2007, passed in Criminal Misc. Case No. 999 (B) of 2007. Thereafter, Lokesh Singh, the son of the deceased C.P. Singh of the present case preferred SLP (Criminal) 2861 of 2007 (Criminal Appeal No. 1649 of 2008) before the Hon''ble Apex Court challenging the order passed by this Court allowing the bail application of the accused applicant. The Hon''ble Apex Court, vide judgment and order dated 21.10.2008 granted leave as well as allowed the appeal and set aside the order passed by this Court granting the bail to the accused applicant. The accused applicant thereafter in compliance of the order of Hon''ble Apex Court surrendered before the trial court on 24.10.2008. Thereafter, he had moved second bail application before this Court on 3.11.2008 which is under consideration.

The facts giving rise to the present application, in brief, are that the accused applicant Shiv Pal Singh @ S.P. Singh, Chandra Pal Singh (C.P. Singh), Govind Yadav, Gopal Ji Misra and D.G. Singh were initially employed as teacher in the ''City Montessori School'', a well reputed institution at Lucknow. All the five teachers chalked out a plan to run their own institution on the pattern of ''City Montessori School''. Therefore, all the five left their services of ''City Montessori School''.

By passage of time, S.P. Singh and C.P. Singh separated themselves from remaining three teachers to establish their own institution. They opened their institution named as ''Lucknow Public School'' in Sector-D, LDA Colony, Kanpur Road, Sector-I, LDA Colony, Kanpur Road, Block-A, Rajajipuram and Block-B, Rajajipuram, Lucknow. The remaining three teachers started new institution named as ''New Public School''. The ''Lucknow Public School'' in Sector-D and Sector-I, LDA Colony, Kanpur Road, Lucknow were run and managed by C.P. Singh while ''Lucknow Public School'' in Block-A and Block-B, Rajajipuram, Lucknow were run and managed by S.P. Singh.

In due course of time, there had been clash of interest between S.P. Singh and C.P. Singh. Consequently, there had been litigations between the two which will not be very relevant to be mentioned here. As per prosecution case, by passage of time, both of them became rivals.

The further prosecution case is that on 21.9.2006 at about 10.00 A.M., C.P. Singh left the ''Lucknow Public School'' situated in Sector-D, L.D.A. Colony, Kanpur Road, Lucknow in his Bolero Jeep bearing No. U.P. 32 AL9099, which was being driven by Naresh Kumar Chawla. and proceeded to his another branch of ''Lucknow Public School'', situated in Sector-I, L.D.A. Colony, Kanpur Road, Lucknow. As C.P. Singh reached at the gate of the Institution situated in Sector-I, L.D.A. Colony, Kanpur Road, Lucknow, some unknown criminals opened fire on him. The employees of the institution immediately rushed on the spot and took him to the Civil Hospital, Hazratganj, Lucknow but the doctor who attended him declared him to be dead.

A written report of the occurrence had been lodged by Sri Virendra Singh, the brother of the deceased C.P. Singh on the same day at 11.30 A.M. at Police Station Ashiyana, District Lucknow. The police of Police Station Ashiyana, District Lucknow on the written report of the complainant, registered a case u/s 302 I.P.C. against the unknown accused for investigation.

During the course of investigation, the Investigating Officer on 9.12.2006, recorded the statement of one Munna Katiyar, who claimed himself to be very close to the deceased C.P. Singh as well as S.P. Singh. He stated before the Investigating Officer that he on one day prior to the date of occurrence had gone to the house of S.P. Singh. He over heard Sri S.P. Singh talking with one Shiv Bahadur Singh. S.P. Singh was asking to Shiv Bahadur Singh that he had not done his work. Shiv Bahadur Singh replied him that work was not possible by giving a shape of accident. However, he had hired two students shooter of Lucknow University who could do his job. S.P. Singh thereafter agreed to his proposal. The Investigating Officer during investigation found that accused Ran Beer Singh and Anand Kumar Singh who were wanted in several criminal cases surrendered before the court concerned on 23.9.2006 i.e. two days after the murder of the deceased. The Investigating Officer collected the phone calls of Ran Beer Singh and Anand Kumar Singh, Shiv Bahadur Singh and S.P. Singh. S.P. Singh on the date of occurrence was present in Calcutta but he had telephonic talk with Shiv Bahadur Singh just after the occurrence. The Investigating Officer after recording the statements of the witnesses acquainted with the facts and circumstances of the case, found that S.P. Singh had hatched a criminal conspiracy with accused Shiv Bahadur Singh to eliminate C.P. Singh who procured hired shooters for him and they did their job on the fateful day of the occurrence. The Investigating Officer also found that the shooters had agreed to eliminate the deceased for Rs. 10,00,000/- (ten lacs), out of which, a sum of Rs. 5,87,000/- (five lacs eighty seven thousand) was paid by S.P. Singh to Shiv Bahadur Singh which was shown to be paid towards purchase of building construction materials. The Investigating Officer also found that the payment towards purchase of building construction materials was fake; rather it was part payment of amount as agreed by S.P. Singh to be paid to the hired shooters. The Investigating Officer after investigation of the case submitted charge sheet against the accused.

Accused S.P. Singh had moved first bail application before this Court. This Court, vide order dated 8.3.2007, passed in Criminal Misc. Case No. 999 (B) of 2007, allowed the bail application of the accused applicant with the following observation;

Having heard learned Counsel for the respective parties as also the Additional Government Advocate, it is amply evident that F.I.R. with respect to the present incident was lodged against unknown persons on 21.09.2006 and in the statements recorded during the course of investigation, i.e. statement of the son of the deceased recorded on 05.12.2006 and statement of Munna Katiyar recorded on 09.12.2006, it was disclosed that the applicant had conspired and abated with respect to the commission of the instant crime by hiring assassins named above. It is much surprising that if the son of the deceased and aforesaid Munna Katiyar were knowing that the applicant and deceased Chandr Pal Singh were on inimical terms, why these two persons kept mum and at the very first opportunity did not disclose this fact to the investigating agency and only in their statements recorded u/s 161 Cr.P.C. which admittedly were recorded after about two and half month from the date of the incident, they disclosed the involvement of the applicant in the present crime. As such, this Court at this juncture is of the opinion that at the most the applicant can be said to be an accused u/s 120B I.P.C. read with Section 302 I.P.C. for which an accused can be sentenced to life imprisonment, but the prosecution story as revealed till now, the manner in which the involvement of the applicant in the commission of the crime has come into light and the evidence collected by the investigating officer puts a dent in the prosecution case. Besides it, involvement of the applicant in the commission of the crime has been disclosed at a very later stage of the investigation.

However, without commenting furthermore, I am of the opinion that the applicant is entitled to be enlarged on bail.

One Lokesh Singh, the son of the deceased C.P. Singh feeling aggrieved by the order passed by this Court allowing the bail application of the accused applicant filed SLP (Criminal) 2861 of 2007 (Criminal Appeal No. 1649 of 2008) before the Hon''ble Apex Court. The parties before Hon''ble Apex Court exchanged their affidavits, counter affidavits and rejoinder affidavits etc. They also filed papers too in support of their affidavits. The Hon''ble Apex Court, vide its judgment and order dated 21.10.2008, granted the leave and allowed the appeal with the following observation:

Above being the position, we are of the view that the High Court was not justified in granting bail to respondent No. 2. The order granting bail is set aside. The respondent No. 2 who was released on bail shall surrender to custody forthwith. We make it clear that we have not expressed any opinion on merits of the case.

The accused applicant in compliance of the Hon''ble Apex Court''s order surrendered before the trial court on 24.10.2008. Thereafter, the accused on 3.11.2009 moved this second bail application. The opposite party has filed counter affidavit and the applicant has filed rejoinder affidavit and supplementary affidavit.

The learned Special Public Prosecutor raised a preliminary objection as to the maintainability of second bail application. The submission of the learned Counsel is that the first bail application filed by Shiv Pal Singh was allowed by this Court on 8.3.2007, passed in Criminal Misc. Case No. 999 (B) of 2007. Lokesh Singh, the son of deceased C.P. Singh challenged the order passed by this Court allowing the bail application filed by Shiv Pal Singh before the Hon''ble Apex Court by filing SLP (Special Leave Petition). The Hon''ble Court was pleased to grant the leave and allowed the appeal on 21.10.2008. The Hon''ble Court set aside the order passed by this Court allowing the bail application of the accused Shiv Pal Singh. The Hon''ble Court directed the accused Shiv Pal Singh to surrender before the trial court. Consequently the accused surrendered before the trial court on 24.10.2008. Thereafter, he moved the second bail application on 3.11.2008 before this Court, which is now under consideration.

The submission of the learned Counsel is that the appellant as well as the accused had filed their pleadings along with the relevant documents before the Hon''ble Apex Court. The Hon''ble Apex Court on the basis of affidavits, counter affidavits, rejoinder affidavits and the documents available before it found that the High Court was not justified to allow the bail application of the accused. Consequently, the Hon''ble Apex Court set aside the order passed by this Court allowing the bail application of the accused. The grounds taken by the accused applicant in the first bail application are the same as in the second bail application. There had been no material change in the factual and legal situation of the case between 21.10.2008 and 3.11.2009 i.e. when the bail order granted by this Court was set aside by the Hon''ble Apex Court and the accused moved the second bail application. The learned Counsel has drawn the attention of this Court towards the paragraphs of the first bail application corresponding to the paragraphs of the second bail application which are almost the same.

The learned Counsel argued that the legality of order passed by the High Court allowing the bail application of the accused was considered by the Hon''ble Apex Court in appeal and not in an application for cancellation of bail u/s 439(2) Cr.P.C. In an application for cancellation of bail u/s 439(2) Cr.P.C., the Court has to consider the limited points for cancellation of bail i.e. subsequent conduct of the accused on any other factor relevant for cancellation of bail but in case of appeal the considerations are otherwise. In case of appeal, the Hon''ble Court considers the entire facts of the case and then forms an opinion whether the order passed by High Court was legally tenable or not. In this case, the Hon''ble Apex Court has considered the affidavits, counter affidavits, rejoinder affidavits, documents and the evidences collected by the Investigating Officer and found the accused was not entitled for bail and the order passed by the High Court was not justified. Consequently, the Hon''ble Apex Court allowed the appeal filed by Lokesh Singh and set aside the order passed by this Court allowing the bail application of the accused.

The further submission of the learned Counsel is that although the principle of resjudicata and the principles analogous there to are not applicable in the criminal proceedings, still the courts are bound by the judicial discipline, having regard to hierarchical system prevailing in the country. The learned Counsel argued that although there is no bar in Cr.P.C. for moving successive bail application but subsequent bail application can only be considered on fresh grounds and not on the same grounds as in earlier bail application. The learned Counsel relying on case Kalyan Chandra Sarkar etc. Vs. Rajesh Ranjan @ Pappu Yadav and Another, decided by Hon''ble Apex Court, argued that in this case the High Court had allowed 8th bail application of the accused which had been canceled by the Hon''ble Apex Court. The accused just after 11 days of the Hon''ble Apex Court''s order cancelling the bail order granted by the High Court moved another bail application before the Hon''ble High Court while there had been no change in the situation either factual or legal during this period even then the Hon''ble High Court allowed the bail application which was challenged by the appellant before the Hon''ble Supreme Court and the Hon''ble Court set aside the order passed by the High Court allowing the bail application of the accused. The Hon''ble Court observed that the finding of the higher court must receive serious consideration at the hands of the court entertaining a bail application at the later stage when the same has been rejected earlier. In such an events, the court must give due weight to the grounds which were argued in the earlier bail application or order of the higher court in rejecting the bail application. Ordinarily the issue which has canvassed earlier would not be permitted to be re-agitated subsequently on the same grounds.

The learned Counsel relying on the above cited case law argued that in the present case the High Court allowed the first bail application of the accused which had been challenged by the son of the deceased before Hon''ble Apex Court by filing Special Leave Petition. The parties filed affidavits, counter affidavits, rejoinder affidavits, documents and other relevant materials. The Hon''ble Apex Court after considering the entire materials on record found that the order passed by the High Court allowing the bail application of the accused was not justified. Consequently the Hon''ble Apex Court, vide judgment and order dated 21.10.2008 set aside the order passed by the High Court. The accused on 3.11.2008 moved present second bail application. During this period, admittedly there had been no change in the situation either factual or legal. The grounds taken by the applicant in the second bail application are the same which he had already taken in first bail application. Once the Hon''ble Apex Court has set aside the order of bail, passed by the court in appeal, the judgment of Hon''ble Court has become final. Now this Court cannot reconsider the second bail application of the accused on the same grounds over and above the order of the Hon''ble Apex Court. It will be against the judicial discipline and propriety. The present bail application as such is, therefore, not maintainable and is liable to be rejected on this ground alone.

The learned Counsel for the accused applicant at this stage very fairly accepts that he is pressing the present bail application of the accused on the same grounds which were already taken by him in the first bail application. The submission of the learned Counsel of the accused is that the accused had moved the first bail application before this Court which was allowed by this Court, vide order dated 8.3.2007. The order passed by this Court was challenged by Lokesh Singh, the son of the deceased before Hon''ble Apex Court by filing Special Leave Petition. The Hon''ble Apex Court granted the leave and allowed the appeal filed by Lokesh Singh. The Hon''ble Court set aside the order, passed by this Court allowing the bail application of the accused. The Hon''ble Court found that the High Court while allowing the bail application did not consider the three basic principles for consideration of bail application. These principles have been mentioned by the Hon''ble Apex Court in its judgment, which are as follows:

The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;

Reasonable apprehension of tempering of the witnesses or apprehension of threat to the complainant;

Prima-facie satisfaction of the Court in support of the charge.

The Hon''ble Apex Court, therefore, was pleased to set aside the order passed by this Court allowing the bail application of the accused. The Hon''ble Court did not cancel the bail order passed by the High Court in favour of accused. The learned Counsel for the accused argued that the word ''set aside'' as per Webster''s Third New International Dictionary means ''to put to one side, to set apart for a purpose''. It means that the Hon''ble Court has put the order passed by the High Court on one side, meaning thereby, the bail application may be considered again on the same ground. The learned Counsel argued that although the Hon''ble Apex Court has not specifically mentioned in its judgment that the matter may be reconsidered by High Court afresh but the Hon''ble Apex Court had orally left it open to the High Court to hear the bail application on the same grounds afresh. The bail application, therefore, is maintainable.

I have given thoughtful consideration to the submissions advanced by the learned Counsel for the parties as well as case law cited by the Special Public Prosecutor.

The law with regard to successive bail application has been discussed by the Hon''ble Apex Court in case Kanyan Chandra Sarkar (supra) where the earlier bail application either had been rejected by the High Court and such order passed by the High Court had been upheld by the Hon''ble Apex Court or where the earlier bail application had been allowed by the High Court and the order allowing the application of the accused had been set aside by the Hon''ble Apex Court. The Hon''ble Court also discussed the finality of its order in such matters.

In case Kalyan Chandra Sarkar (supra), the fourth bail application filed by the accused had been rejected by the High Court. The accused thereafter moved the fifth bail application before High Court which was allowed by the High Court. The order passed by the High Court allowing the bail application of the accused was challenged by the appellant before the Hon''ble Apex Court which was allowed by the Hon''ble Apex Court on the ground that the High Court while granting the bail did not keep in mind the requirements of Section 437(1)(i) Cr.P.C. However, the Hon''ble Court observed that if accused moves fresh bail application, the same shall be decided by the High Court in accordance with the law.

The accused thereafter moved sixth bail application which was dismissed by the High Court. The accused filed SLP before the Hon''ble Apex Court which was dismissed by the Hon''ble Court.

The accused thereafter, moved seventh bail application before High Court which too was dismissed by the Court and thereafter, the accused filed the SLP before the Hon''ble Apex Court which was dismissed by the Hon''ble Court.

The accused, thereafter, moved 8th bail application before High Court on the sole ground that the accused has undergone incarceration for period of three years and there was no likelihood of trial being concluded in near future. The High Court was pleased to allow the bail application of the accused which was challenged by the appellant before the Hon''ble Apex Court. The Hon''ble Court set aside the order of High Court allowing the bail application of the accused and held that the bail application filed by the accused could not be allowed on sole ground that there was a delay in conclusion of trial without taking into consideration the allegations made by the prosecution in regard to existence of prima-facie case, gravity of offence and allegation of tempering with the witnesses by threat and inducement when on bail. The accused after lapse of 11 days from the order passed by the Hon''ble Apex Court moved ninth bail application without there being any change in factual or legal situation. The bail application was allowed by the High Court which was challenged by the appellant Kalyan Chandra Sarkar before the Hon''ble Apex Court. The Hon''ble Court in para 20 of the judgment has considered as to when the subsequent bail application can be allowed by the High Court when the earlier order passed by the High Court allowing the bail application has been set aside by the Apex Court. The relevant observations of the Hon''ble Court are being extracted below:

The decisions given by a superior forum, undoubtedly, are 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 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, 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.

The Hon''ble Court in para 19 of the judgment has discussed the binding effect of its order on subordinate courts in the matter of bail application where the order of Hon''ble High Court allowing the bail application of accused has been set aside by the Court in appeal or where rejection of bail application of High Court has been confirmed by the Court, which is being extracted below;

The principles of res judicata and such analogous principles although are not applicable in a criminal proceeding, 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 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.

In view of the law laid down by the Hon''ble Apex Court in the aforesaid case, it is well settled that although the successive bail application can be moved by the accused where the earlier bail application had been rejected by High Court or where the order passed by the High Court allowing the bail application of the accused has set aside by the Hon''ble Apex Court in appeal but the successive bail application can be considered only if there has been change in factual or legal situation. The subsequent bail application filed by the accused cannot be considered on the same ground as in the earlier bail application. The Hon''ble Court has also observed that where the order of High Court allowing the bail application has been set aside by the Apex Court, the same will be binding on the other courts on the grounds of hierarchical judicial system prevailing in the country.

In this case, the learned Counsel for the accused applicant fairly accepts that the accused applicant has moved the second bail application on the same ground as in the first bail application. The first bail application was allowed by the High Court on 8.3.2007 and the order of the High Court allowing the bail application was set aside by the Hon''ble Apex Court in appeal filed by Lokesh Singh, the son of the deceased in SLP on 21.10.2008. The accused on 3.11.2008 has moved second bail application which is under consideration. Admittedly, there had been no change in factual or legal situation when present bail application was moved. The Hon''ble Apex Court after going through the affidavits, counter affidavits, rejoinder affidavits and other documents filed by the parties in appeal before it found that the order passed by High Court allowing the bail application of the accused was not justified. Consequently, the Hon''ble Apex Court was pleased to set aside the order passed by the High Court allowing the bail application of the accused. Once the Hon''ble Apex Court has set aside the order of the High Court allowing the bail application of the accused, it will be against the judicial discipline to consider the second bail application filed by the accused on the same grounds which were already taken by him in his earlier bail application. Once the order passed by the Hon''ble High Court allowing the bail application of accused Shiv Pal Singh was disapproved by the Hon''ble Apex Court, it will not be open to this Court to re-examine the same issue on the same ground again and take a different view from the view already taken by the Hon''ble Apex Court. The submission of learned Counsel for the applicant could have force if the Hon''ble Apex Court had remanded the matter to this Court for consideration afresh.

One of the grounds taken by the applicant is that the Hon''ble Apex Court while allowing the SLP had orally observed the accused could move the bail application on same ground before the High Court but this fact has been denied by the complainant in his counter affidavit. In the absence of any specific direction of the Hon''ble Apex Court, it cannot be accepted that the Hon''ble Apex Court had orally observed that the accused could move fresh bail application on same ground.

In view of the discussion mentioned hereinabove, the second bail application as such moved by the accused is not maintainable and is liable to be rejected.

At this stage, it will be relevant to mention here that the complainant Virendra Singh in para 11 of his counter affidavit has stated that the Sessions Trial pending against the accused applicant is on progress. Three prosecution witnesses had already been examined by the prosecution. The statement of fourth witness, namely, D.D. Dubey (P.W. 4) was continued. The next date fixed for trial was 31st August, 2009. It is expected that the prosecution would have examined more witnesses. Keeping in view the progress of the Sessions Trial pending against the accused applicant, it will also not be proper to enlarge the accused applicant on bail.

The bail application is, therefore, rejected.