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2020 DIGILAW 781 (HP)

Rahul Malik v. State of Himachal Pradesh

2020-10-30

CHANDER BHUSAN BAROWALIA

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JUDGMENT Chander Bhusan Barowalia, J. - The present bail application has been maintained by the petitioner under Section 439 of the Code of Criminal Procedure seeking his release in case FIR No. 68 of 2016, dated 27.06.2016, under Section 302, 307, 147, 148, 149 IPC and Sections 25 & 29 of the Arms Act, registered at Police Station Dharampur, District Solan, Himachal Pradesh 2. On 26.06.2016, in a horrendous incident of gunshot, allegedly fired by the petitioner herein, one Shri Param Jeet Singh (deceased), lost his life. Tersely, the facts, as emanates from the records are that on 26.06.2016 Smt. Taran Jeet Kaur (complainant) got her statement recorded under Section 154 Cr.P.C. As per the complainant, she alongwith her husband, Shri Param Jeet Singh used to run a restaurant (dhaba) at Sanawara and the said dhaba was being looked after by her, her husband and nephew Hasandeep (injured). On 26.06.2016, when she was washing clothes, around 05:00 p.m., a tourist group of 10/15 persons came in the dhaba and they were being attended upon by Naresh Kumar (attendant). Subsequently, a dispute arose qua the freshness of the meals and scuffle ensued. One of the persons from the tourist group went to the vehicle, brought a pistol and fired at her husband (Shri Param Jeet Singh). Shri Hasandeep was also hit with gun shot on his chest. Thereafter, all the persons fled away from the spot in their vehicle, having registration number of Uttar Pradesh. The deceased and Shri Hasandeep were rushed to the CHC, Dharampur. The deceased was declared dead and Shri Hasandeep was referred to PGI, Chandigarh. On the basis of the statement of the complainant, police registered a case and the investigation ensued. Postmortem examination on the corpse of the deceased was conducted. Police prepared the spot map and clicked photographs of the spot. CCTV footage was obtained and police recovered empty cartridges, sword like weapon, having blood, pieces of carton etc. During the course of investigation, it was unearthed that the petitioner alongwith other accused persons fled away from the spot in a vehicle, having registration No. UP14FT-3871. The petitioner was arrested on 27.06.2016 and he was medically examined. Police collected the scientific evidence for analysis. Other accused persons were also arrested. Scientific samples collected from the spot were chemically examined in Forensic Science Laboratory, Junga. The petitioner was arrested on 27.06.2016 and he was medically examined. Police collected the scientific evidence for analysis. Other accused persons were also arrested. Scientific samples collected from the spot were chemically examined in Forensic Science Laboratory, Junga. CCTV footage was also examined, which shows the presence of the petitioner and other accused persons on the spot. During the course of investigation, it was unearthed that the petitioner alongwith other accused persons were on tour to Dharamshala and Shimla and while returning they stopped in the dhaba of the deceased. The petitioner and other accused persons were not satisfied with the quality of the food, so a quarrel started and the petitioner fired at the deceased. As per the prosecution, challan stands presented in the Court and now the prosecution witnesses are being examined. Lastly, it is prayed that the bail application of the petitioner be dismissed, as, it was the petitioner, who opened fire at the deceased and injured. The petitioner was proactively involved in commission of the crime and he killed the deceased and caused lifethreatening injuries to the injured. The petitioner alongwith other coaccused was involved in a heinous offence and in case he is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice. The prosecution opposed the petition on the ground that there exists prima facie case against the petitioner and other accused persons and there is reasonable ground that the petitioner, alongwith other accused persons, committed the murder of the deceased, the offence of which the petitioner is accused of is heinous and there is possibility that the petitioner, in case enlarged on bail, may abscond. Simultaneously, the prosecution is objecting the bail application on the basis that in case the petitioner is enlarged on bail, he may try to influence the witnesses and there is possible danger of justice being thwarted by granting bail to the petitioner. 3. I have heard the learned Senior Counsel for the petitioner, learned Additional Advocate General for the State, learned Counsel for the complainant and gone through the record, including the police reports, carefully. 4. Before proceeding further, it would be imperative to note that earlier the petitioner approached this Court, by filing two petitions i.e., Cr.MP(M) No. 1508 of 2018 and Cr.MP(M) No. 1364 of 2019, one after another, seeking his bail. 4. Before proceeding further, it would be imperative to note that earlier the petitioner approached this Court, by filing two petitions i.e., Cr.MP(M) No. 1508 of 2018 and Cr.MP(M) No. 1364 of 2019, one after another, seeking his bail. Cr.MP(M) No. 1364 of 2019 was ultimately dismissed and by this Court and in Cr.MP(M) No. 1508 of 2018, a Co-ordinate Bench of this Court granted bail to the petitioner for a fixed period, i.e., w.e.f. 11.12.2018 to 02.01.2019, permitting him to appear in examination. Relevant para of the judgment, rendered by Co-ordinate Bench of this Court in Cr.MP(M) No. 1508 of 2018, for ready reference, is extracted hereunder: 6. Considering the entire facts and circumstances of the case and also previous orders passed rejecting his bail, granting permission to appear in examination and on the basis of other material on record, I am of the considered opinion that he is not entitled for regular bail, but bail only for limited period, enabling him to appear in the examination. Accordingly, petitioner is ordered to be released on bail for limited period i.e. w.e.f. 11th December, 2018 till 2nd January, 2019, subject to furnishing of personal bonds in the sum of Rs. 1,00,000/- with two sureties in the like amount, one of which must be from the State of Himachal Pradesh, to the satisfaction of learned trial Court, also depositing his Pass Port in original in Trial Court and subject to further following conditions:- (i) That the petitioner shall surrender before Superintendent Jail on 2nd January, 2019 befo9re 3:00 P.M.: (ii) that the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required; (iii) that the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses; (iv) that he shall not obstruct the smooth progress of the investigation/trial; (v) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected; (vi) that the petitioner shall not misuse his liberty in any manner; (vii) that the petitioner shall not jump over the bail; (viii) he shall not leave the territory of India without prior permission of the Court; (ix) if petitioner is having Passport, he shall deposit the original Passport in the trial Court at the time of furnishing bail bonds; (x) he shall keep informing change of his address, during bail period; (xi) Petitioner shall also inform about mobile number, if any and landline phone number for contact by police making himself available to approach at any time." Thus, by way of the instant petition, the petitioner has approached this Court third time seeking his bail. As observed above, previous bail petition of the petitioner, i.e., Cr.MP(M) No. 1364 of 2019, was dismissed by this Court on 19.08.2019 and now the petitioner has again approached this Court seeking his bail. 5. Needless to say that after dismissal of a bail petition, the bail petitioner, in a succeeding petition, has to successfully show before the Court, the change in the circumstances. It is well settled that the accused has a right to maintain successive bail petitions under changed circumstances and the change in the circumstances must be substantial having direct and consequential impact on the previous decision, whereby the bail was denied. The change(s) in the circumstances must not be trivial or cosmetic having no significance or of little or no consequence. It is also well settled that without substantial change in the circumstances, the subsequent bail petition would be merely review sought to the earlier petition, which was rejected, and such review is not permissible under the law. It is the duty of the Court to consider all the reasons and grounds whereupon the earlier bail petition was rejected and what are the fresh grounds worth consideration and ultimately warranting evaluation of fresh bail petition and leading the Court to take a divergent view from that of the earlier view rejecting the petition. There must be change in fact situation or in law, compelling the Court to take different view. There must be change in fact situation or in law, compelling the Court to take different view. Thus, the Court has a narrow area to reconsider the successive bail petition and this narrow area is only change in circumstances. 6. The learned Senior Counsel for the petitioner has argued that now there is change in the circumstances as co-accused Nikhil Malik has been enlarged on bail by Hon'ble the Supreme Court. He has further argued that the petitioner only retaliated in self-defence, as the deceased initially shot from his pistol at brother of the petitioner and he sustained bullet injury, and this fact has also come in the prosecution story. He has further argued that the complainant party was aggressor and the brother of the petitioner sustained grievous injury. He has argued that the petitioner is behind the bars for the last more than four years and the trial is not likely to be completed soon. Now with the change in circumstances, the petition may be allowed and the petitioner may be enlarged on bail. Earlier a cancellation report qua the case registered against the complainant party was prepared, but now a cross case has been registered under Section 307 IPC against them and they are on bail. Conversely, learned Additional Advocate General has argued that there is no change in the circumstances, as no prosecution witness has been examined after the dismissal of the earlier bail petition, i.e., Cr.MP(M) No. 1508 of 2020, and the mere fact that co-accused Nikhil Malik, whose role in the commission of the offence is not akin to that of the petitioner, cannot be considered, as change in the circumstances. He has further argued that the petitioner cannot be released on bail, as it was the petitioner, who opened fire, and resultantly the deceased died and one more person sustained grievous injuries. He has argued that there are chances that in case the petitioner is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice. He has prayed that the bail application of the petitioner be dismissed. 7. He has argued that there are chances that in case the petitioner is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice. He has prayed that the bail application of the petitioner be dismissed. 7. In rebuttal, the learned Senior Counsel for the petitioner has argued that taking into consideration the change in the circumstances viz., co-accused Nikhil Malik has been enlarged on bail by the Hon'ble Supreme Court and the facts that the petitioner is behind the bars for the last more than four years and the trial is not likely to conclude soon and moreover the petitioner cannot be kept behind the bars for an unlimited period, so the petition may be allowed and the petitioner be released on bail. 8. As observed above, in successive petitions, the petitioner has to successfully show change in the circumstances. There must be substantial change in the circumstances, having direct impact on the previous rejection or refusal of the bail and in absence of such substantial change in the circumstances, the succeeding bail petition is merely review of the earlier petition. 9. During incisive consideration of all facets of the case, viz-aviz, the established position of law, this Court is of the view that the petitioner has failed to show any substantial change in the circumstances. The so-called change in the circumstances that coaccused Nikhil Malik has been enlarged on bail by the Hon'ble Supreme Court has no direct impact on the circumstances, as in the present case the petitioner, as emanates from the prosecution story and from the records, opened fire and resultantly the deceased was killed and one more person sustained grievous injuries. So, the role of the petitioner is clearly severable and the petitioner cannot take advantage of the fact that one or more co-accused have now been enlarged on bail. The extant petition is more in the nature of review to earlier petition, which was dismissed, and fail to show any change in the circumstances. 10. The perusal of the records reveals that after the dismissal/rejection of the preceding petition, no prosecution witness was examined by the learned Trial Court. The extant petition is more in the nature of review to earlier petition, which was dismissed, and fail to show any change in the circumstances. 10. The perusal of the records reveals that after the dismissal/rejection of the preceding petition, no prosecution witness was examined by the learned Trial Court. So, at this stage, after going through the records, this Court finds that there is no change in the circumstances and the circumstances existing when the earlier bail petition was dismissed by this Court, have not changed and they are the same. So, considering the gravity of the offence, the role of the petitioner in the alleged offence, the fact that the petitioner is in a position to tamper with the prosecution evidence and may also flee from justice, in case enlarged on bail, this Court is of the view that the present is not a fit case where the judicial discretion to admit the petition on bail is required to be exercised in his favour. 11. In view of what has been discussed hereinabove, the petition, which sans merits, deserve dismissal and is accordingly dismissed. 12. The views expressed hereinabove, are only confined to the extant petition and shall not be construed as an opinion expressed on the merits of the main case, which shall be adjudged on its own merits.