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2020 DIGILAW 1001 (ALL)

Mahaveer Respondent v. State of U. P.

2020-07-07

RAVI NATH TILHARI, SUNEET KUMAR

body2020
JUDGMENT : Ravi Nath Tilhari, J Crl. Misc. Second Bail Application No. 7 of 2019 1. Heard Sri Indra Kumar Chaturvedi, learned Senior Advocate assisted by Sri Thakur Azad Singh, learned counsel for the appellant/applicant and learned A.G.A. for the State. 2. This is the second bail application by the appellant/applicant Mahaveer, who is convicted and sentenced in ST No. 368 of 2007, arising out of Case Crime No. 1247 of 2006, under Sections 396, 120B, 412 IPC, Police Station Naugawan Sadat, District J.P. Nagar. 3. The first bail application being Criminal Misc. Bail Application No. 3280 of 2016 was rejected by this Court on merits by order dated 14.9.2016. Thereafter the applicant filed Criminal Misc. Short Term Bail Application No. 4 of 2018 seeking release on short term bail on medical grounds, which was also rejected on merits by this Court by order dated 5.3.2019. 4. Learned counsel for the applicant submits that the present second bail application is being filed on the ground of serious ailment of the applicant who is languishing in jail since 3.11.2015 after conviction. The applicant is having a very weak physic and suffered massive attack (paralyze) in jail and was taken to Sardar Vallabh Bhai Patel Hospital, Meerut, where he was treated on 17.4.2018. Thereafter, the applicant’s condition became worse and he was again admitted in the same Hospital on 6.6.2018, after being medically examined by the Medical Board. On 12.6.2018, the applicant was referred to Government Authorized Higher Centre (AIM) G.B. Panth Hospital, New Delhi, and was admitted at Dr. Ram Manohar Lohiya Hospital, New Delhi on 12.6.2018. He was discharged on 13.6.2018 but was again admitted at Pt. Deen Dayal Upadhyaya Combined (Male) Hospital, Moradabad on 15.7.2019 where the applicant remained upto 22.7.2019 and was further referred to higher centre Sardar Vallabh Bhai Patel Associated with LLRN Medical, Meerut on 27.7.2019. Since then, the applicant is continuously admitted in the hospital and is under medical treatment. The applicant is aged about 70 years and in the circumstance of the case, he is entitled for grant of bail on the medical ground of ailment. 5. Since then, the applicant is continuously admitted in the hospital and is under medical treatment. The applicant is aged about 70 years and in the circumstance of the case, he is entitled for grant of bail on the medical ground of ailment. 5. Per contra, learned A.G.A. submits that so far as the ground of applicant’s ailment is concerned, on such consideration, i.e. physical condition and the treatment, looking to the documents annexed by the applicant along with the short term bail application upto 13.6.2018, the applicant’s short term bail application was rejected by this Court by order dated 5.3.2019. He submits that on the same facts and ground, as in the short term bail application the second bail application cannot be considered and the applicant is not entitled for bail. Learned A.G.A. submits that from the averments in the affidavit in support of second bail application it is evident that the jail authorities are taking better care of the applicant’s health and are providing best available treatment to him in different hospitals. He submits that considering the nature of the offence, nature of injuries and the finding recorded by the trial court the applicant’s first bail application was rejected. There is no fresh ground for grant of bail and on the ground of ailment the short term bail was rejected. 6. We have considered the submissions advanced by the learned counsel for the parties and perused the material on record including supplementary affidavit of the applicant. 7. In Kalyan Chandra Sarkar Vs. Rajesh Ranjan alias Pappu Yadav and another (2005) 2 SCC 42 , the Hon’ble Supreme Court has held that it is not open to the aggrieved person to make successive bail applications even on a ground already rejected by the Courts earlier. It has also been held that the findings of a higher court or a co-ordinate 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 court must give due weight to the grounds which weighed with the former or higher court in rejecting the bail application. We consider it appropriate to reproduce paragraphs 18 to 20 of the aforesaid judgment as under: “18. It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. We consider it appropriate to reproduce paragraphs 18 to 20 of the aforesaid judgment as under: “18. It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However. Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non-bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. But even persons accused of nonbailable offences are entitled for bail if the court concerned comes to the conclusion that the prosecution has failed to establish a prima-facie case against him and/or if the court is satisfied for reasons to be recorded that inspite of the existence of prima-facie case there is a need to release such persons on bail where fact situations require it to do so. In that process a person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if the reisa change in the fact situation. In such cases if the circumstances then prevailing requires that such persons to be released on bail, in spite of his earlier applications being rejected, the courts can do so. 19. 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. 20. 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. 20. The decisions given by a superior forum, undoubtedly, is binding on the subordinate for a on the same issue even in bail matter sunless of course, the reisa 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 guaranty conferred on a person under Article 21 of the Constitution of India, it is open to the aggrieved person to make successive bail applications even on a groundal ready rejected by courts earlier including the Apex Court of the country.” 8. The first bail application of the applicant was rejected by this Court, after going through the entire merits of the case. This Court by order dated 14.9.2016 took cognizance of the relevant facts and noting that more than a dozen gun shot entry wounds were found on the body of the deceased in indiscriminate firing in which incident the applicant was armed with fire arm and there was a background of enmity and there were attempts to commit murder in question made earlier. Considering the motive, occular version and the ante mortem injuries received by the deceased, the applicant was refused bail. 9. The applicant’s short term bail application was also rejected by order dated 5.3.2019, observing that whatever ailment with which the appellant was suffering was already being taken care of medically and the fact that the applicant was being treated at different hospitals as per the need was not disputed. 10. We do not find any material change in the fact situation in this second bail application. The ground taken is already covered by order dated 5.3.2019. 10. We do not find any material change in the fact situation in this second bail application. The ground taken is already covered by order dated 5.3.2019. The only thing is that the future physical condition of the applicant w.e.f. 15.7.2019 has further been mentioned, but without disputing that the jail authorities are taking due care medically and are providing treatment in different hospitals. 11. We are further of the view that considering over all facts of the case, the age of the applicant is no ground to release him on bail. 12. Thus considered we are not inclined to grant bail to the applicant. The second bail application of the applicant Mahaveer is hereby rejected.