Jagjeet Singh Alias Jagga vs State Of Uttarakhand
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Uttarakhand High Court

Jagjeet Singh Alias Jagga vs State Of Uttarakhand on 7 March, 2025

Author: Rakesh Thapliyal

Bench: Rakesh Thapliyal

                                                         2025:UHC:1612



     IN THE HIGH COURT OF UTTARAKHAND AT
                    NAINITAL

            Second Bail Application No. 5 of 2025


Jagjeet Singh Alias Jagga                                ...Applicant

                                 Vs.
State of Uttarakhand                                   ...Respondent


Presence:
1.   Mr. U.K. Uniyal, learned senior counsel (through V.C.) assisted
by Mr. Harshit Sanwal, learned counsel for the petitioner.
2.   Mr. Pankaj Joshi, learned A.G.A. for the State.
3.   Mrs. Pushpa Joshi, learned senior counsel assisted by Mrs. Chetna
Latwal and Ms. Manisha Thakur, learned counsel for the complainant.

Hon'ble Rakesh Thapliyal, J. (Oral)

This is a second bail application moved by the applicant Jagjeet Singh alias Jagga, who is seeking bail in relation to First Information Report dated 06.08.2022 bearing FIR No. 160 of 2022, P.S. Gadarpur, District Udham Singh Nagar. The First bail application was rejected by this court on 13.10.2023.

2. Against the order rejecting the First Bail Application the applicant approached to the Hon'ble Supreme Court by way of Special Leave Petition (Criminal) Diary no. 6062 of 2024; however the said SLP was dismissed on 21.02.2024. The order passed by the Hon'ble Supreme Court is read as under:

"1. Delay condoned.

2. Heard learned counsel appearing for the petitioner. We are not inclined to enlarge the petitioner on bail for the time being.

3. The Special Leave Petition stands dismissed.

4. Pending application(s), if any, shall stand disposed of."

2025:UHC:1612

3. Thereafter, the present second bail application was moved on 04.01.2025 after almost ten months of the order passed by the Hon'ble Supreme Court. The State was directed to file objection to the second bail application on 08.01.2025, and thereafter the State also filed their objections.

4. Mr. U.K. Uniyal, learned senior counsel argued that the instant bail application has been moved on the fresh grounds, which were never been taken in the first bail application. The first argument, he has advanced, is that on the date when the first bail application of the present applicant was rejected, the bail application of other co-accused Pradeep Singh was allowed and he was enlarged on bail.

5. He further submits that though PW1 was examined on 03.08.2023 the date which is prior to the rejection of the first bail application, however, what he has stated in his cross examination that ground was not taken at the time of first bail application.

Learned senior counsel Mr. U.K. Uniyal submits that this witness i.e. PW1 who was per prosecution was the eye witness during his cross examination stated that he carried the deceased in the vehicle to the hospital however the Investigating Officer has not taken blood stain clothes of this witness though when he carried the deceased to the hospital there was a blood in his clothes. He also stated that even the Investigating Officer has not demand his blood stained clothes.

6. In reference to this, there is a specific averment in paragraph 23 of the bail application, however, this fact has not been denied by the prosecution in their counter affidavit. In reference to this, Mr. U.K. Uniyal, learned senior counsel placed reliance in one of the judgment of the Hon'ble Apex Court i.e. in

2025:UHC:1612 Criminal Appeal No. 181-182 of 1996 decided on 10.04.2003 'State of Punjab vs. Harbans Singh and Others' and submits that since the blood stain clothes of this witness was not taken by the Investigating Officer during investigation, therefore the presence of this eye witness i.e. PW1 at the time of incident is doubtful.

7. Apart from this, Mr. U.K. Uniyal submits that as per the prosecution there are two other eye witnesses i.e PW2 and PW3; however, both these two eye witnesses were also declared hostile by the Trial Court. PW2 was declared hostile on 19.03.2024 and PW3 was also declared hostile on the same date i.e. 19.03.2024 after rejection of first bail application.

8. Mr. U.K. Uniyal submits that the first bail application was rejected on 13.10.2023 and these two witnesses i.e. PW2 and PW3 were declared hostile by the Trial Court subsequent thereto, therefore, this is a fresh ground for seeking second bail.

9. Apart from this, Mr. U.K. Uniyal further submits that five persons were named in the FIR, however, only two persons were chargesheeted and the rest of three persons were exonerated though the PW1 the alleged eyewitness as per the prosecution in his examination-in-chief clearly stated that in the said offence five persons, who were named in the FIR were involved. By making this statement Mr. U.K. Uniyal submits that this aspect clearly reveals that the investigation was carried out in a very casual manner and the chargesheet was filed in a mechanical manner.

10. Apart from this, Mr. U.K. Uniyal further submits by referring the FSL report that the PW4 Lakhmeer Singh, who as per the prosecution recorded the dying declaration of the deceased in his mobile stated in his cross-examination that his mobile in which he has recorded the dying declaration was

2025:UHC:1612 claimed to be reset and later on his brother forwarded the video to his mobile, however, in his cross-examination he has not disclosed to the Trial Court that the video clip was forwarded by his brother to his mobile, which falsify the prosecution story since it create a doubt whether actually PW 4 recorded the dying declaration in his mobile.

11. On the other side Mr. Pankaj Joshi, learned A.G.A. argued that all these grounds, which have been taken in the second bail application, are in fact not the fresh ground except one ground i.e with regard to the FSL report, which in fact was available to the applicant at the time when he has moved the first bail application and further submits that FSL report was positive and supports the case of the prosecution.

12. Apart from this, he submits that the present applicant have a history of two criminal cases.

13. On the other side Mrs. Pushpa Joshi, learned senior counsel for the complainant, argued by placing reliance on several judgments and in reference to this the first judgment she has relied upon is in the case of Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu Yadav and Another reported in (2004) 7 SCC 528 and submits that the Hon'ble Supreme Court clearly hold that successive bail application are maintainable only if there is a change in circumstances or if the earlier order was perverse. She argued that there are no changed circumstances and there is no substantial change in facts or law, therefore the second bail application is liable to be rejected.

14. Mrs. Pushpa Joshi, learned senior counsel also argued that this is not a case that any new evidence were collected and further there are other witnesses and whatever be the evidences have been collected during investigation while submitting the

2025:UHC:1612 chargesheet that was available at the time when the first bail application was filed and, therefore, since there are no fresh evidence or new witness, therefore, the second bail application is liable to be rejected.

In reference to this argument, she placed reliance on the judgment of Hon'ble Supreme Court in the case of Ranjitsing Brahamjeetsingh Sharma vs. State of Maharashtra reported in (2005) 5 SCC 294.

15. Apart from this, learned senior counsel Mrs. Pushpa Joshi also argued by referring one of the judgment of Hon'ble Supreme Court i.e. in the case of Prabhakar Tewari vs. State of U.P. reported in (2020) 11 SCC 648 and submits that the bail can be granted if the prosecution case found to be weak and since in the present case there are material evidence and the prosecution case is strong therefore the applicant does not deserve for bail.

16. Apart from this, Mrs. Pushpa Joshi, learned senior counsel also argued that this is not a case in which the applicant is seeking default bail since within the time as stipulated under Cr.P.C. the chargesheet was filed within time. In reference to this, she has relied upon the judgment of the Hon'ble Apex Court in the case of Rakesh Kumar Paul vs. State of Assam reported in (2017) 15 SCC 67.

17. Finally, she argued the second bail application under Section 439 Cr.P.C. can be entertained only on the new circumstances or facts and since in the present second bail application there is no such any new circumstances or facts, therefore, the second bail application is liable to be rejected.

18. Mrs. Pushpa Joshi, learned senior counsel also argued that even if a particular ground was not taken in the first bail

2025:UHC:1612 application and that was available even then the grounds, which were available at the time of filing of first bail application cannot be taken in a successive bail application, therefore, the present second bail application is liable to be dismissed. Mrs. Pushpa Joshi, learned senior counsel also argued that so far as the forensic report and the statement and the cross examination of the witness of the prosecution are concerned all these are subject matter of the trial and that cannot be taken into consideration for grant of bail particularly in a successive bail application.

19. In reference to the arguments as advanced by Mrs. Pushpa Joshi Mr. U.K. Uniyal, learned senior counsel to the applicant submits that argument as advanced by Mrs. Pushpa Joshi are not acceptable.

In reference to this, Mr. U.K. Uniyal, learned senior counsel placed reliance in one of the judgment of the Hon'ble Apex Court in the case of Kalyan Chandra Sarkar vs. Rajesh Ranjan Alias Pappu Yadav and Another reported in (2004) 7 SCC 52, particularly he has placed reliance of paragraph 12 and 20 of the said judgment, which are being reproduced herein as under:

"12. 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 application for bail should be granted. (See Ram Govind Upadhyay, supra).

21. Before concluding, we must note 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 what are the fresh grounds which persuade it to take a view different from the one taken in the earlier applications. In the impugned order we do not see any

2025:UHC:1612 such fresh ground recorded by the High Court while granting bail. It also failed to take into consideration that at least on four occasions order refusing bail has been affirmed by this Court and subsequently when the High Court did grant bail, this Court by its order dated 26th July, 2000 cancelled the said bail by a reasoned order. From the impugned order, we do not notice any indication of the fact that the High Court took note of the grounds which persuaded this Court to cancel the bail. Such approach of the High Court, in our opinion, is violative of the principle of binding nature of judgments of superior court rendered in a lis between the same parties, and in effect tends to ignore and thereby render ineffective the principles enunciated therein which have a binding character."

20. By referring the aforesaid judgment Mr. U.K. Uniyal submits that while entertaining the successive bail application the onus on the court to consider the subsequent bail application for grant of bail by noticing the grounds on which the earlier bail applications have been rejected and after such consideration if the court is of the opinion that the bail has to be granted then the said court will have to give a specific reason why despite of such earlier rejection the subsequent application for bail should be granted.

21. Mr. U.K. Uniyal, learned senior counsel submits that though the PW1 was examined on 03.08.2023 the date prior to the rejection of the first bail application but while rejecting the bail application neither this ground was taken in the first bail application nor it was argued, which is clearly evident from the order rejecting the first bail application.

22. I also examined the record of the first bail application and also the order rejecting the first bail application and though there is a reference of statement of PW1 but what he has stated in his cross examination during trial that was not considered

23. Learned senior counsel for the complainant Mrs. Pushpa Joshi, at this juncture intervene and submits that though the issue of taking blood stain clothe was not observed in the

2025:UHC:1612 order rejecting the first bail application, but this ground was available to the applicant, therefore, in the successive bail application this ground cannot be taken to be a fresh ground, therefore, the instant second bail application is liable to the rejected.

24. After hearing the arguments of learned counsel for the parties what this court has observed that there are two other eye witnesses i.e. PW2 and PW3 and admittedly which has not been disputed by the learned A.G.A. these two witnesses were declared hostile on 19.03.2024, which is a date subsequent to the rejection of the first bail application. Now, the question is whether declaring a witness hostile by the Trial Court can be a fresh ground in a successive bail application and whether this can be only a subject matter of the trial this aspect is very relevant to decide this second bail application.

25. In reference to this, Mr. U.K. Uniyal submits that no doubt what would be the impact of declaring the witness to be hostile that will be a subject matter of trial, but since the trial is going on therefore this aspect can be treated to be a fresh ground for bail due to the changed circumstances. He further submits that it may not be a fresh ground after post conviction, but since the trial is going on therefore if a particular witness is declared to be hostile that should be taken into consideration as a fresh ground for second bail.

26. Mr. U.K. Uniyal further argued that declaring two eye witnesses PW2 and PW3 as hostile by the trial court is in fact a changed circumstance during trial and as per the prosecution these two witnesses are material and eye witness and more particularly these two witnesses were examined on 19.03.2024 after rejection of the first bail application, therefore, due to the

2025:UHC:1612 changed circumstances by which these two eye witnesses has been declared hostile may be treated to be a fresh ground in second bail.

27. Apart from this, Mr. U.K. Uniyal, learned senior counsel, also submits that the Hon'ble Supreme Court also observed in its order dated 21.02.2024 that the applicant is not being entitled for bail for the time being and thereafter this these two witnesses were examined on 19.03.2024, therefore, this changed circumstances declaring two eye witnesses hostile by trial court is certainly a changed circumstance and as such is a fresh ground for bail. In reference to this some more judgments has been relied upon by Mr. U.K. Uniyal and first judgment is of High Court of Madhya Pradesh in the case of Devendra S/o Laxman Mandloi vs. State of M.P. i.e Miscellaneous Criminal Case No. 16616 of 2021 decided on 27.04.2021 wherein it has been observed that declaring an eye witness hostile during trial is a changed circumstance, therefore, should be considered for grant of bail.

28. Another judgment, which has been relied upon is rendered by the High Court of Delhi dated 24.05.2005 in Bail Application No. 656 of 2005 'Kapil Dev vs. State' and particularly placing reliance in paragraph 10, which is being reproduced herein as under:

"10. Therefore, it is clear that a second bail application can be entertained if there is a changed in the fact situation which required the earlier view being interfered with. In the backdrop of these legal principles one has to examine the situation arising in the present case. The case is of a recovery of 500 grams of heroin from the present petitioner. The only independent public witness Ratanbir (PW5) has turned hostile and has indicated that no such recovery was at all made in his presence from the present petitioner. There is the added aspect of differences in documents as observed by the court conducting the trial. These considerations were not there before the court when the order dated 4.5.2004 was passed.

2025:UHC:1612 Therefore, these are clearly changes in the fact situation and these changes go to the root of the matter in the sense that they cast a doubt on the recovery itself. While the learned counsel for the State maybe correct in stating that mere defects in the search per se would not vitiate the trial, this is not what we are considering here. What is being considered here is whether on the basis of material on record, the broad probabilities indicate that the recovery was not made. I think it is so indicated. I am satisfied that there are reasonable grounds to believe that the petitioner may not be ultimately convicted of the offences in this case. There is nothing brought to my notice to indicate that the petitioner would be likely to commit an offence if granted bail. He has no criminal antecedents and that is a relevant factor in coming to the opinion that there is no likelihood of the petitioner committing an offence under the NDPS Act while on bail."

29. In support of this argument further reliance has been placed in another judgment of the Delhi High Court decided on 03.09.2007 in Bail Application No. 750/2007 'Sumer Singh vs. State' Manu/De/8470/2007 and particularly placed reliance in paragraph 12, 13, 20 and 21, which are being reproduced herein as under:

"12. Before proceeding further, it may be noted that this is the second application seeking bail filed by the petitioner. His earlier application being Bail Application No. 2219/2005 was withdrawn on 10.11.2005 with the express statement that liberty be granted to the petitioner to file fresh application for bail after eye witnesses Balraj and Ranbir were examined.

13. Thus, since eye witnesses have been examined, there being a material changed in circumstances, present application can be considered on merits.

20. No doubt, at this stage, I am not required to threadbare examine the testimony of the witnesses, but that would not mean that his court would be totally prohibited from having a bird's eye view of the testimony of the witnesses.

21. Certainly, it may be arguable that the court, at this stage, cannot threadbare analyze the evidence i.e. start identifying consistent or inconsistent evidence and this exercise has to await final trial. But, where prosecution case appears to be weakening, justifying grant of bail, limited exercise of prima facie evaluating the evidence can be carried out by this Court."

30. The another judgment has also been placed reliance by Mr. U.K. Uniyal, learned senior counsel is of High Court of

2025:UHC:1612 Rajasthan at Jodhpur dated 06.09.2018 passed in S.B. Criminal Misc. Bail No. 7204 of 2018 'Ramesh @ Hema Garasiya vs. State of Rajasthan' and by referring this judgment Mr. U.K. Uniyal submits that declaring a particular witness hostile by the Trial Court is a substantial change in the circumstances, therefore, that should be considered as a ground for bail in successive bail application.

31. After hearing the arguments of learned counsel for the parties and further after gone through the various judgments relied upon by the learned counsel for the applicant and the learned counsel for the complainant, this court is of the view that declaring two eye witnesses as hostile by the Trial Court is a substantial change in the circumstances, who were declared hostile after rejection of the first bail application, therefore this is certainly a fresh ground available to the applicant in this second bail application.

32. It is also informed that out of 13 witnesses only 4 witnesses have been examined so far and the applicant is languishing in jail since 07.08.2022 for considerable long period and still 8 witnesses have to be examined and furthermore there is no need of custodial interrogation of the present applicant since trial has already been commenced and it is also a settle principle of law that bail is the rule of law and jail is an exception, therefore, this court is of the view that the applicant deserves for bail by putting some stringent conditions. Accordingly, without expressing any opinion on the merit of the case the second bail application moved by the applicant is allowed.

33. Let the applicant 'Jagjeet Singh alias Jagga' be released on bail on furnishing his personal bond and two sureties

2025:UHC:1612 each of the like amount to the satisfaction of the court concerned subject to the following conditions:

(i) The applicant after being released on bail shall furnish his passport to the Trial Court immediately.

(ii) The applicant will not seek any adjournment in the trial and the trial would be expedited as early as possible without giving any unnecessary adjournment preferably within six months from today .

(iii) During bail the applicant will not make any attempt to either influence the witnesses or give any threatening and if he is found to be involved in such an activity the prosecution is free to move application for cancellation of his bail.

(iv) Apart from this, if the applicant is found to be indulged in any criminal activity the prosecution is directed to immediately apprise this court either by making mention or by moving an appropriate application.

34. In addition to the aforesaid conditions the present applicant till the disposal of the trial will report his presence to the nearest police station every week and the concerned S.H.O. shall endorse his presence.

(Rakesh Thapliyal, J.) 07.03.2025

PR