Uttarakhand High Court
Manoj vs State Of Uttarakhand on 14 March, 2022
HIGH COURT OF UTTARAKHAND AT NAINITAL
THE HON'BLE SRI JUSTICE SHARAD KUMAR SHARMA
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
SECOND BAIL APPLICATION No.2867 of 2022
In
CRIMINAL APPEAL No.481 of 2019
Manoj ...Appellant
Versus
State of Uttarakhand ...Respondent
Counsel for the Appellant : Mr. Tapan Singh, learned
counsel.
Counsel for the State : Mr. Dinesh Chauhan, learned
Brief Holder
Corum: Hon'ble Sharad Kumar Sharma, J.
Hon'ble Alok Kumar Verma, J.
Hon'ble Alok Kumar Verma, J. (Oral)
This Second Bail Application (No.2867 of 2022),
has been filed by the appellant for the regular bail. The first
bail application was rejected by the Co-ordinate Bench of
this High Court on 29.07.2020.
2. This Criminal Appeal has been filed by the
appellant against the judgment and order dated
21/23.08.2019, passed by the learned F.T.C./Additional
Sessions Judge, Special Judge (POCSO), Haridwar in Special
Sessions Trial No.26 of 2015, "State vs. Manoj", whereby,
the appellant has been convicted and sentenced to undergo
life imprisonment along with a fine of Rs.20,000/- for the
offence under Section 302; he has been convicted and
sentenced for life imprisonment along with a fine of
Rs.20,000/- for the offence under Section 376(2)(i) of the
IPC. The appellant has been further convicted and
sentenced for life imprisonment along with a fine of
Rs.20,000/- for the offence punishable under Section 4 of
the Protection of Children from Sexual Offences Act, 2012.
All the sentences are directed to run concurrently.
3. Heard Mr. Tapan Singh, the learned counsel
appearing for the appellant and Mr. Dinesh Chauhan, the
learned Brief Holder for the State.
4. Mr. Tapan Singh, the learned counsel appearing
for the appellant submitted that the appellant has been
falsely implicated in this matter; the medical report did not
support the prosecution case; and, the appellant is in
custody since 18.04.2015.
5. Mr. Dinesh Chauhan, the learned Brief Holder
appearing for the State, opposed the bail application and
submitted that the present second bail application is not
maintainable, because, all these contentions were raised by
the learned counsel for the appellant at the time of the
arguments on the first bail application. He further argued
that the victim/ deceased was under sixteen years of her
age and the prosecution witnesses have supported the
prosecution case.
6. In the case of State of U.P. vs. Amarmani
Tripathi, (2005) 8 SCC 21, the Hon'ble Apex Court has
held that it is well settled that the matters to be considered
in an application for bail, are (i) whether there is any prima
facie or reasonable ground to believe that the accused had
committed the offence, (ii) nature and gravity of charge, (iii)
severity of the punishment in the event of conviction, (iv)
danger of the accused absconding or fleeing, if released on
bail, (v) character, behavior, means, position and standing
of the accused, (vi) likelihood of the offence being repeated,
(vii) reasonable apprehension of the witnesses being
tampered with, and (viii) danger, of course, of justice being
thwarted by grant of bail.
7. A ratio decidendi of the judgment of Hon'ble Apex
Court in Anil Kumar Yadav vs. State (N.C.T.) of Delhi
and another, 2018(1) CCSC 117 is that in serious crimes,
the mere fact that the accused is in custody for more than
year, may not be a relevant consideration to release the
accused on bail.
8. Hon'ble Supreme Court in "Satya Pal vs. State
of Uttar Pradesh", 1998 Supreme (All) 437, has held
that the second bail application cannot be allowed on those
very facts that were available to the accused while the first
bail application was moved and rejected.
9. In State of Maharashtra Vs. Captain
Buddhikota Subha Rao, AIR 1989 SC 2292, the Hon'ble
Supreme Court has 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. ......"
10. In State of Madhya Pradesh Vs. Kajad,
(2001)7 SCC 673, the Hon'ble Supreme Court has held
that it is true that successive bail applications are
permissible under the changed circumstances. But without
the change in the circumstances, the second bail application
would be deemed to be seeking review of the earlier
judgment which is not permissible under criminal law.
11. The appellant had opportunity to raise all his
contentions on the previous occasion and he had actually
raised the said contentions. Therefore, it is not open to the
appellant to make successive bail application even on the
grounds already rejected by the Co-ordinate Bench of this
High Court.
12. On 29.07.2020, the Co-ordinate Bench
observed that in case the appellant wants early hearing of
the appeal, he would be at liberty to move an appropriate
application for expedite hearing, which shall be considered
in accordance with law. Admittedly, no such application
has been moved on behalf of the appellant.
13. In the present matter, the prosecution's
witnesses have supported the case of the prosecution. At
this stage, a detailed appreciation of evidence shall affect
the merits of the case. If a strong prima facie ground is
disclosed for substantial doubt about the conviction, it may
be ground to grant bail. Such a ground does not appear in
the present case.
14. On overall consideration of the application and in
the light of the fact that any change in the circumstances is
not established, after rejection of the first bail application on
merit, we do not find any change in the circumstances to
entertain present second bail application. The second bail
application does not deserve to be entertained.
Consequently, the present second bail application is
rejected.
15. It is clarified that the observations made
regarding the bail application are limited to the decision, as
to whether the bail application should be allowed or not and
the said observations shall not effect the merit of the
appeal.
16. Put up this Criminal Appeal for hearing on
04.04.2022.
____________________
Sharad Kumar Shamra, J.
___________________
Alok Kumar Verma, J.
Dt: 14th March, 2022
Pant/
