Himachal Pradesh High Court

Reserved On: 30.4.2025 vs State Of Himachal Pradesh on 7 May, 2025

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP(M) No. 109 of 2025 Reserved on: 30.4.2025 Date of Decision: 07.05.2025.

    Rakesh Kumar                                                                 ...Petitioner
                                          Versus

    State of Himachal Pradesh                                                    ...Respondent


    Coram

Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No.

For the Petitioner : Mr. Sarvedaman Rathore, Advocate.

For the Respondent : Mr. Jitender Sharma, Additional Advocate General.

Rakesh Kainthla, Judge

The petitioner has filed the present petition for

seeking regular bail. It has been asserted that the petitioner was

arrested on 15.1.2022, vide FIR No. 139 of 2021, dated 31.12.2021,

registered for the commission of offences punishable under

Sections 302, 323, 325 and 341 of the Indian Penal Code (IPC), at

Police Station Padhar, District Mandi, H.P. The police have filed

the charge sheet and the custodial interrogation of the

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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petitioner is not required. The petitioner has roots in society,

and there is no chance of his absconding. The petitioner would

abide by the terms and conditions which the Court may impose.

Hence, the petition.

2. The petition is opposed by filing a status report

asserting that the police received information from the Medical

Officer, Civil Hospital Padhar, on 31.12.2021 that one person was

brought in an injured condition to the hospital. The police went

to verify the information. The informant made a statement that

he had gone to the house of Neelma Devi on 31.12.2021. The

petitioner had also visited her home. The informant, Neelma

Devi and the petitioner consumed liquor. They had some

arguments. The informant left for his home at 7:00 p.m. The

petitioner stopped him and beat him with a stick. The informant

was rescued by Himmat Ram, who had reached the spot in

connection with his work. The police registered the F.I.R. and

conducted the investigation. The petitioner produced the stick

used by him for the commission of crime. The Medical Officer

certified that the informant had sustained one simple and one

grievous injury. The police added Section 325 of the IPC. As per

the opinion of the Medical Officer, the stick produced by the

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petitioner could cause grievous injury to the head. The condition

of the informant deteriorated on 07.01.2022. He was brought to

the hospital and was referred to IGMC, Shimla. He succumbed to

his injuries on 14.01.2022. The post-mortem examination of the

dead body was conducted, and as per the report of the Medical

Officer, the cause of death was septicemic shock caused by head

injury. The police added Section 302 of the IPC and arrested the

petitioner. The challan was prepared and presented before the

Court. The prosecution cited twenty-two witnesses, out of

whom nineteen witnesses have been examined, and three

witnesses are yet to be examined. Hence the status report.

3. I have heard Mr. Sarvedaman Rathore, learned

counsel for the petitioner and Mr. Jitender Sharma, learned

Additional Advocate General, for the respondent-State.

4. Mr. Sarvedaman Rathore, learned counsel for the

petitioner, submitted that the petitioner is innocent and he was

falsely implicated. There is delay in the progress of the trial. The

petitioner has been in custody since 15.1.2022, and the

prosecution has not completed the evidence within three years.

The petitioner cannot be kept behind the bars indefinitely.

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Hence, he prayed that the present petition be allowed and the

petitioner be released on bail.

5. Mr. Jitender Sharma, learned Additional Advocate

General, for the respondent-State, submitted that there is no

delay in the progress of the trial. The prosecution has examined

19 witnesses, and only three witnesses are to be examined. The

earlier bail petition filed by the petitioner was dismissed by the

Court, and there is no change in the circumstances justifying the

grant of bail. Therefore, he prayed that the present petition be

dismissed.

6. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

7. The parameters for granting bail were considered by

the Hon'ble Supreme Court in Ramratan v. State of M.P., 2024 SCC

OnLine SC 3068, wherein it was observed as follows: -

"12. The fundamental purpose of bail is to ensure the accused's presence during the investigation and trial. Any conditions imposed must be reasonable and directly related to this objective. This Court in Parvez Noordin Lokhandwalla v. State of Maharastra (2020) 10 SCC 77 observed that though the competent court is empowered to exercise its discretion to impose "any condition" for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the

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need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. The relevant observations are extracted herein below:

"14. The language of Section 437(3) CrPC which uses the expression "any condition ... otherwise in the interest of justice", has been construed in several decisions of this Court. Though the competent court is empowered to exercise its discretion to impose "any condition" for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legitimately be imposed both in the context of bail and anticipatory bail." (Emphasis supplied)

13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570, this Court discussed the scope of the discretion of the Court to impose "any condition" on the grant of bail and observed in the following terms: --

"15. The words "any condition" used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance, effective in the pragmatic sense, and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such an extreme condition to be imposed." (Emphasis supplied)

14. This Court, in Dilip Singh v. State of Madhya Pradesh (2021) 2 SCC 779, laid down the factors to be taken into

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consideration while deciding the application for bail and observed:

"4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration while considering an application for bail are the nature of the accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; the reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial."

(Emphasis supplied)

8. The present petition has to be decided as per the

parameters laid down by the Hon'ble Supreme Court.

9. It is undisputed that the petitioner had earlier filed a

bail petition, which was registered as Cr.MP(M) No. 1650 of 2024

and the same was dismissed on 13.8.2024. 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, a

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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.

10. Similar is the judgment delivered in State of M.P. v.

Kajad, (2001) 7 SCC 673, wherein it was observed: -

8. 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

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this Court in Hari Singh Mann v. Harbhajan Singh Bajwa [(2001) 1 SCC 169: 2001 SCC (Cri) 113] and various other judgments.

11. Similarly, it was held in Kalyan Chandra Sarkar v.

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."

12. A similar view was taken in State of T.N. v. S.A. Raja,

(2005) 8 SCC 380, wherein it was observed:

9. 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 bail

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applications without there being any change of circumstances would lead to bad precedents."

13. This position was reiterated in Prasad Shrikant

Purohit v. State of Maharashtra (2018) 11 SCC 458, wherein it was

observed:

"30. Before concluding, we must note that though an accused has a right to make successive applications for the 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."

14. It was held in Ajay Rajaram Hinge v. State of

Maharashtra, 2023 SCC OnLine Bom 1551, that a successive bail

application can be filed if there is a material change in the

circumstances, which means a change in the facts or the law. It

was observed:

"7. It needs to be noted that the right to file successive bail applications accrues to the applicant only on the existence of a material change in circumstances. The sine qua non for filing subsequent bail applications is a material change in circumstance. A material change in circumstances settled by law is a change in the fact situation or law which requires the earlier view to be interfered with or where the earlier finding has become obsolete. However, a change in circumstance has no bearing on the salutary principle of judicial propriety that successive bail application needs to be decided by the same Judge on the merits, if available at the place of

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sitting. There needs to be clarity between the power of a judge to consider the application and a person's right based on a material change in circumstances. A material change in circumstance creates in a person accused of an offence the right to file a fresh bail application. But the power to decide such subsequent application operates in a completely different sphere, unconnected with the facts of a case. Such power is based on the well-settled and judicially recognized principle that if successive bail applications on the same subject are permitted to be disposed of by different Judges, there would be conflicting orders, and the litigant would be pestering every Judge till he gets an order to his liking resulting in the credibility of the Court and the confidence of the other side being put in issue and there would be wastage of Court's time and that judicial discipline requires that such matter must be placed before the same Judge, if he is available, for orders. The satisfaction of material change in circumstances needs to be adjudicated by the same Judge who had earlier decided the application. Therefore, the same Judge needs to adjudicate whether there is a change in circumstance as claimed by the applicant, which entitles him to file a subsequent bail application."

15. Therefore, the present bail petition can only be

considered on the basis of the change in the circumstances, and

it is not permissible to review the order passed by the Court.

16. A perusal of the earlier order shows that 15 witnesses

were examined on 13.8.2024, and thereafter, four more

witnesses have been examined. The copies of the order sheets

have not been filed to show whether there is a delay, and if so, to

whom the delay is attributable. The examination of four

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witnesses since the dismissal of the earlier petition shows that

the trial is progressing normally, and the plea regarding the

delay in the progress of the trial is not acceptable.