Yashwant Kumar vs State Of Himachal Pradesh

Rakesh Kainthla, J

The petitioner has filed the present petition for seeking pre-arrest bail. It has been stated that F.I.R. No. 326 of 2023, dated 28.11.2023, has been registered at Police Station Nalagarh, District Solan, H.P. for the commission of offences punishable under Sections 420, 467, 468, 471 and 120B of the Indian Penal Code (IPC). The petitioner apprehends his arrest in connection with the aforesaid F.I.R. The prosecution case is based upon an absurd, baseless and imaginary story. There is nothing on record to connect the petitioner with the commission of a crime. The investigation is continuing and sometime would be taken in the filing of the charge sheet. The petitioner is ready and willing to abide by all the terms and conditions, which may be imposed by the Court. The petitioner had earlier filed a bail petition, which was dismissed and the present petition is being filed due to material change in the circumstances because the case property has been released and nothing is to be investigated. The charge sheet has not yet been filed even after the expiry of 90 days. The petitioner joined the investigation earlier as per the orders passed by the Court. Therefore, it was prayed that the present petition be allowed and the petitioner be released on pre-arrest bail.

The petition is opposed by filing a status report asserting that the mobile number of co-accused Gurmeet Singh was used for uploading the Form No. 35. OTP was received on the mobile phone and the process of change of ownership was completed with the mobile number of co-accused Gurmeet Singh. The Document Writer stated that the affidavit of Hemraj was prepared at the instance of co-accused Gurmeet. Hem Raj also stated that he had handed over the truck to co-accused Gurmeet Singh for plying the same and he had not sold the Truck to Yashwant. The affidavit was prepared on the pretext that co-accused Gurmeet Singh would be responsible for the damages arising out of the use of the vehicle. A loan of Rs. 23,51,503/- is still payable to IndusInd Bank. Form No. 35 was uploaded without payment of the loan. The vehicle was transferred in the name of the petitioner and he is to be interrogated regarding the process of forgery. The laptop, computer and the seals used for forging the documents are yet to be recovered. The petitioner did not cooperate with the investigation earlier and his custodial interrogation is necessary. Hence, it was prayed that the present petition be dismissed.

I have heard Mr. Yug Singhal, learned counsel for the petitioner and Ms Seema Sharma, learned Deputy Advocate General for the respondent-State.

Mr Yug Singhal, learned counsel for the petitioner submitted that the case property has been released and the charge sheet has not been filed even after the expiry of the period of 90 days. These are material circumstances, which have changed after the decision of the last petition filed by the petitioner. Hence, he prayed that the present petition be allowed and the petitioner be released on pre-arrest bail.

Ms. Seema Sharma, learned Deputy Advocate General submitted that the petitioner did not cooperate with the investigation and his further custodial interrogation is necessary to know the method of forgery and to recover the implements for forging the documents; therefore, she prayed that the present petition be dismissed.

I have given considerable thought to the submissions at the bar and have gone through the records carefully.

It is not disputed that the petitioner had filed an earlier petition bearing Cr.MP(M) No. 3134 of 2023, which was dismissed on 07.03.2024. It was held in the State of Maharashtra Vs. Captain Buddhikota Subha Rao (1989) Suppl. 2 SCC 605 that once a bail application has been dismissed, subsequent bail application can only be considered if there is a change of circumstances. It was observed:

“Once that application was rejected there was no question of granting a similar prayer. That is virtually overruling the earlier decision without there being a change in the fact situation. And when we speak of change, we mean a substantial one, which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. 'Between the two orders, there was a gap of only two days and it is nobody's case that during these two days, drastic changes had taken place necessitating the release of the respondent on bail. Judicial discipline propriety and comity demanded that the impugned order should not have been passed reversing all earlier orders including the one rendered by Puranik, J. 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.

Similar is the judgment delivered in State of M.P. v. Kajad, (2001) 7 SCC 673, wherein it was observed: -

It has further to be noted that the factum of the rejection of his earlier bail application bearing Miscellaneous Case No. 2052 of 2000 on 5-6-2000 has not been denied by the respondent. It is true that successive bail applications are permissible under the changed circumstances. But without the change in the circumstances, the second application would be deemed to be seeking a review of the earlier judgment which is not permissible under criminal law as has been held by this Court in Hari Singh Mann v. Harbhajan Singh Bajwa [(2001) 1 SCC 169: 2001 SCC (Cri) 113] and various other judgments.

Similarly, it was held in Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 that where an earlier bail application has been rejected, the Court has to consider the rejection of the earlier bail application and then consider why the subsequent bail application should be allowed. It was held:

“11. In regard to cases where earlier bail applications have been rejected there is a further onus on the court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail applications have been rejected and after such consideration, if the court is of the opinion that bail has to be granted then the said court will have to give specific reasons why in spite of such earlier rejection the subsequent bail application should be granted.”

A similar, view was taken in State of T.N. v. S.A. Raja, (2005) 8 SCC 380, wherein it was observed:

When a learned Single Judge of the same court had denied bail to the respondent for certain reasons and that order was unsuccessfully challenged before the appellate forum, without there being any major change of circumstances, another fresh application should not have been dealt with within a short span of time unless there were valid grounds giving rise to a tenable case for bail. Of course, the principles of res judicata are not applicable to bail applications, but the repeated filing of the bail applications without there being any change of circumstances would lead to bad precedents.

This position was reiterated in Prasad Shrikant Purohit v. State of Maharashtra, (2018) 11 SCC 458, wherein it was observed:

Before concluding, we must note that though an accused has a right to make successive applications for grant of bail, the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record the fresh grounds which persuade it to take a view different from the one taken in the earlier applications.

The previous bail petition was dismissed on the ground that the petitioner was not cooperating with the investigation. The custodial interrogation was necessary and these circumstances have not changed. The release of the truck will not affect the position of the petitioner because the interrogation of the petitioner is required to discover the method of forgery and the implements used for forging the documents, which has nothing to do with the release of the vehicle. The plea that a charge sheet has not been filed within

90 days will not assist the petitioner because the petitioner has absconded and no charge sheet can be filed in his absence. Hence, no material circumstances have been changed, justifying the grant of bail to the petitioner.

In view of the above the petitioner is not entitled to pre-arrest bail; hence present petition fails and the same is dismissed.

The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the merits of the case.