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2021 DIGILAW 540 (RAJ)

Mukesh Kumar Meena v. State Of Rajasthan

2021-03-03

MAHENDAR KUMAR GOYAL

body2021
JUDGMENT 1. The present second bail application has been filed under Section 439 Cr.P.C. The petitioner has been arrested in connection with FIR No.577/2019 registered at Police Station Neemrana, District Bhiwadi for the offence(s) under Section(s) 147, 148, 149, 450, 307, 302, 323 and 341 of I.P.C. later on for offence under Sections 147, 148, 149, 323, 341, 325, 450, 307, 302 and 120-B and challan for offence under Sections 147, 148, 149, 450, 307, 302, 323, 325, 341 and 120-B of IPC and Section 9/25 of Arms Act. 2. Learned counsel for the petitioner, inviting attention of this Court towards the statements of prosecution witnesses namely; Narendra, Kailash and Subhanta Devi, recorded under Section 161 Cr.P.C, submitted that none of the prosecution witnesses has levelled any allegation against the present petitioner of inflicting any injury on the person of deceased or other injured persons. Learned counsel submitted that contents of FIR reveal that the incident occurred at the spur of moment without any premeditation. He submitted that as per the post-mortem report of the deceased, he has suffered no fracture on his head i.e. vital part of the body and as per opinion of the Medical Board, the possible cause of death was excessive hemorrhage and hence, no offence under Section 302 IPC is made out. Relying on the judgment of Hon'ble Apex Court of India in case of Kadra Pehadiya & Ors. versus State of Bihar, AIR 1981 Supreme Court 939, learned counsel submitted that the petitioner is entitled to be released on bail as he is in custody for more than a period of one year in sessions trial, the outer limit fixed therein. Referring the judgment of the Hon'ble Apex Court of India in case of Sanjay Chandra versus Central Bureau of Investigation and other connected matters, AIR 2012 Supreme Court 830, learned counsel submitted that since charges have been framed in the present case after rejection of the first bail application, it amounts to change in circumstance entitling the petitioner to renew his prayer for grant of bail. Learned counsel submitted that, even otherwise also, while appreciating the second bail application, this Court can reconsider the reasonings assigned by it while dismissing the earlier bail application. He, therefore, prayed for release of the petitioner on bail. 3. Learned counsel submitted that, even otherwise also, while appreciating the second bail application, this Court can reconsider the reasonings assigned by it while dismissing the earlier bail application. He, therefore, prayed for release of the petitioner on bail. 3. Per contra, learned Public Prosecutor assisted by the learned counsel for the complainant submitted that the petitioner absconded during investigation and hence, charge-sheet under Section 299 Cr.P.C. came to be filed against him. They submitted that the petitioner was an active member of the unlawful assembly which murdered Virendra Singh and also inflicted a number of injuries including grievous injuries to many persons from the complainant side in furtherance of their common object and hence, his individual act is of no relevance at this stage. They submitted that the petitioner has criminal record and an FIR No. 795/2020 came to be registered against him under Sections 323, 346, 504, 506 and 34 IPC on 04.10.2020 during his custody in the present case. They, therefore, prayed for rejection of this bail application. 4. Heard learned counsels for the parties and perused the record. 5. There is no qualm about proposition that filing of successive bail applications is permissible; however, it is also settled that there has to be some substantial change in circumstance which would permit the Court rejecting the earlier bail application, fresh consideration on the matter. The Hon'ble Apex Court in case of Kalyan Chandra Sarkar etc. versus Rajesh Ranjan @ Pappu Yadav and Anr., AIR 2005 SCC, 921, held as under:- "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 re-agitated on the same grounds, as the same it 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 re-agitated on the same grounds, as the same it 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 matters unless of course, there is a 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 ground already rejected by courts earlier including the Apex Court of the country. " 6. Further, the Hon'ble Apex Court of India in case of State of M.P. Vs. Kajad, (2001) 7 SCC 673 , held as under: "8. It has further to be noted that the factum of the rejection of his earlier bail application bearing Misc. 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 review of the earlier judgment which is not permissible under criminal law as has been held by this Court in Hari Singh Mann v. Harbhajan Singh Bajwa & Anr. [ 2001 (1) SCC 169 ] and various other judgments." 7. But without the change in the circumstances the second application would be deemed to be seeking review of the earlier judgment which is not permissible under criminal law as has been held by this Court in Hari Singh Mann v. Harbhajan Singh Bajwa & Anr. [ 2001 (1) SCC 169 ] and various other judgments." 7. The Hon'ble Apex Court of India has, in case of Ram Govind Upadhyay versus Sudarshan Singh & Ors, (2002) 3 Supreme Court Cases 598, held as under:- "9.Undoubtedly, considerations applicable to the grant of bail and considerations for cancellation of such an order of bail are independent and do not overlap each other, but in the event of non- consideration of considerations relevant for the purpose of grant of bail and in the event an earlier order of rejection available on the records, it is a duty incumbent on to the High Court to explicitly state the reasons as to why the sudden departure in the order of grant as against the rejection just about a month ago. The subsequent FIR is on record and incorporated therein are the charges under Sections 323 and 504 IPC in which the charge-sheet have already been issued the Court ought to take note of the facts on record rather than ignoring it. In any event, the discretion to be used shall always have to be strictly in accordance with law and not dehors the same. The High Court thought it fit not to record any reason, far less any cogent reason, as to why there should be a departure when in fact such a petition was dismissed earlier not very long ago. The consideration of the period of one year spent in jail cannot in our view be a relevant consideration in the matter of grant of bail, more so by reason of the fact that the offence charged is that of murder under Section 302 IPC having the punishment of death or life imprisonment- it is a heinous crime against the society and as such the Court ought to be rather circumspect and cautious in its approach in a matter which stands out to be a social crime of very serious nature." 8. The first bail application filed by the petitioner, after submission of charge sheet against him, was considered and dismissed by this Court vide its order dated 18.5.2020 taking into consideration merits of the matter after hearing submission made by learned counsels for the respective parties based on material contained in the charge sheet against him. Therefore, the petitioner cannot renew his prayer for grant of bail on the same material/submissions which were available at the time of consideration of the first bail application, lest, it may amount to review of the order rejecting the earlier bail application which is impermissible under criminal jurisprudence. 9. The change in circumstances pointed out by the learned counsel for the petitioner entitling him to file this second bail application is two fold. Firstly, he has remained in custody for a period of more than a year and secondly, charges have been framed against him. 10. In so far as submission of the learned counsel for the petitioner as to right of the petitioner to be released on bail on remaining in custody for a period of more than a year in sessions trial based on judgment of the Hon'ble Supreme Court of India in case of Kadra Pehadiya (supra) is concerned, the relevant observations of the Hon'ble Apex Court in para 2 of the judgment are as under:- "2.XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX We had occasion in Hussainara Khatoon's case (1980) 1 SCC 81 : ( AIR 1979 SC 1360 ) to criticise this shocking state of affairs and we hoped that after the anguish expressed and the severe strictures passed by us, the justice system in the State of Bihar would improve and no one shall be allowed to be confined in jail for more than a reasonable period of time, which we think cannot and should not exceed one year for a Sessions trial, but we find that the situation has remained unchanged and these four petitioners, who entered the jail as young lads of 12 or 13 have been languishing in jail for over eight years for a crime which perhaps ultimately they may be found not to have committed." 11. It is trite that the judgments of the Court can be read as Euclid's formula and every judgment has to be considered in the light of factual matrix involved therein. 12. It is trite that the judgments of the Court can be read as Euclid's formula and every judgment has to be considered in the light of factual matrix involved therein. 12. The Hon'ble Apex Court of India has, in case of Bharat Petroleum Corporation Ltd. & Anr. Vs. N.R. Variamani & Anr.: AIR (2004) SC 4778, held as under:- "9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. V. Horton ( 1951 AC 737 at p.761), Lord Mac Dermot observed: "The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge." 10. In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, "Lord Atkin's speech.....is not to be treated as if it was a statute definition it will require qualification in new circumstances." Megarry, J in (1971) 1 WLR 1062 observed: "One must not, of course, construe even a reserved judgment of Russell LJ. In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, "Lord Atkin's speech.....is not to be treated as if it was a statute definition it will require qualification in new circumstances." Megarry, J in (1971) 1 WLR 1062 observed: "One must not, of course, construe even a reserved judgment of Russell LJ. as if it were an Act of Parliament." And, in Herrington v. British Railways Board ( 1972 (2) WLR 537 ) Lord Morris said: "There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case." 11.Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. 12. The following words of Lord Denning in the matter of applying precedents have become locus classic us: "Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive." "Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it." 13. In Rukmini Narvekar Vs. Vijaya Satardekar & Ors.: AIR (2008) 14 SCC 1 , the Hon'ble Apex Court of India held as under:- 20. We have carefully perused the decision of this Court in the State of Orissa vs. Debendra Nath Padhi. My plea is to keep the path to justice clear of obstructions which could impede it." 13. In Rukmini Narvekar Vs. Vijaya Satardekar & Ors.: AIR (2008) 14 SCC 1 , the Hon'ble Apex Court of India held as under:- 20. We have carefully perused the decision of this Court in the State of Orissa vs. Debendra Nath Padhi. Though the observations in paragraph 16 of the said decision seems to support the view canvassed by by Shri Rohatgi, it may be also pointed out that in paragraph 29 of the same decision it has been observed that the width of the powers of the High Court under Section 482 of Cr.P.C and Article 226 of the Constitution is unlimited where under in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of the court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal case. Thus we have to reconcile paras 16 and 23of the decision in State of Orissa vs. Debendra Nath Padhi. 21. We should also keep in mind that it is well settled that a judgment of the Court has not to be treated as a Euclid formula [vide Rajbir Singh Dalai (Dr.) vs. Chaudhari Devi Lal University]. As observed by this Court in Bharat Petroleum Corporation Ltd. & Anr. vs. N.R. Vairamani, observations of Courts are neither to be read as Euclid's formula nor as provisions of the statute. 22. Thus in our opinion, while it is true that ordinarily defence material cannot be looked into by the Court while framing of the charge in view of D.N. Padhi case, there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the Court at the time of framing of the charges or taking cognizance." 14. In the aforesaid case of Kadra Pehadiya (supra) glaring facts which compelled the Hon'ble Apex court to reiterate the observations made by it in case of Hussainara Khatoon (supra), are recorded in para 2 of the judgment, which read as under:- "2. In the aforesaid case of Kadra Pehadiya (supra) glaring facts which compelled the Hon'ble Apex court to reiterate the observations made by it in case of Hussainara Khatoon (supra), are recorded in para 2 of the judgment, which read as under:- "2. Here is a case where four young boys who are designated as petitioners in the writ petition have been in Pakud sub-jail in Santhal Praganas for a period of about eight years without their trial having made any progress. They all belong to the Paharia Tribe which is admittedly a backward tribe. Two of them were arrested on 26th Nov., 1972 while the other two, on 19th Dec, 1972. The jail record shows the ages of the petitioners between 18 and 22 years at the time of their arrest, but Dr. Vasudha Dhagamwar states in her letter that they could not have been more than 9 to 11 years old when they were arrested, because on inquiry the jail staff told her that the petitioners were "naked goat-herds" when they first came to jail and when Dr. Vasudha Dhagamwar saw them in October, 1980, they looked about 18 to 22 years old. Though the petitioners were brought to the jail as far back as November and December, 1972, their case was not committed to the Court of Session until 2nd July, 1974. It is difficult to understand why their committal to the Court of Session should have been delayed for such a long period as 20 months after their arrest. We should like the High Court of Patna to make an inquiry and find out why it should have taken a period of 20 months for the case of the petitioners to be committed to the Sessions Court and to submit a report to us of the result of such inquiry. But this was not the end of the delay and procrastination of the justicing process. It was just the beginning, because we find that though the case was committed to the Court of Session on 2nd July, 1974, the trial did not commence until 30th August 1977. It took a period of three years for the trial to begin after the committal to the Court of Session. This discloses a shocking state of affairs. There is something wrong with the entire system. It took a period of three years for the trial to begin after the committal to the Court of Session. This discloses a shocking state of affairs. There is something wrong with the entire system. How can any civilized society tolerate a legal and judicial system which keeps a person in jail for three years without even commencing his trial. But the atrocity does not end here : more is yet to come. Though the trial of the petitioners commenced on 30th August, 1977 it was merely a symbolic commencement, for it never proceeded further and it has not yet made any progress. The petitioners appeared in the Sessions Court on 30th August, 1977 but thereafter, Dr. Vasudha Dhagamwar says, they have not been in Court again. Three more years have passed but they are still rotting in jail, not knowing what is happening to their case. They are perhaps reconciled to their fate, living in a small world of their own cribbed, cabined and confined within the four walls of the prison. The outside world just does not exist for them. The Constitution has no meaning and significance and human rights, no relevance for them. It is a crying shame upon our adjudicatory system which keeps men in jail for years on end without a trial. We had occasion in Hussainara Khatoon's case to criticise this shocking state of affairs and we hoped that after the anguish expressed and the severe strictures passed by us, the justice system in the State of Bihar would improve and no one shall be allowed to be confined in jail for more than a reasonable period of time, which we think cannot and should not exceed one year for a Sessions trial, but we find that the situation has remained unchanged and these four petitioners, who entered the jail as young lads of 12 or 13 have been languishing in jail for over eight years for a crime which perhaps ultimately they may be found not to have committed. It is obvious that after so many years of incarceration awaiting trial, either their spirit must be totally broken or they must be seething with anger and resentment against the society. We fail to understand why our justice system has become so dehumanised that lawyers and Judges do not feel a sense of revolt at caging people in jail for years without a trial. We fail to understand why our justice system has become so dehumanised that lawyers and Judges do not feel a sense of revolt at caging people in jail for years without a trial. It is difficult to comprehend how the Sessions Judge could have forgotten that he had called the petitioners to the Court for commencement of the trial on 30th August, 1977 and thereafter done nothing in the matter. We pointed out in Hussainara Khatoon's case that speedy trial is a fundamental right of an accused implicit in Article 21 of the Constitution, but we notice that in the case of these four petitioners, this fundamental right has merely remained a paper promise and has been grossly violated. It is surprising that these four petitioners should not have been released on bail despite our observations in Hussainara Khatoon's case. Since the trial has not made any progress for the last over eight years, we direct the Sessions Judge, Dumka to take up the case against these four petitioners immediately and to proceed with it from day to day without any interruption. The Sessions Judge Dumka will submit a report to this Court immediately after the disposal of the case stating as to when he took up the case for hearing and when he completed it. These four petitioners will be provided legal representation by a fairly competent lawyer at the cost of the State, since legal aid in a criminal case has been declared by us in Hussainara Khatoon's case to be a fundamental right implicit in Article 21 of the Constitution. We expect complete compliance with our direction by the Sessions Judge, Dumka. We should also like the Sessions Judge, Dumka to inform us within a week as to why he could not commence the trial of the petitioners until 30th August, 1977 and why no further steps have been taken in the trial thereafter." 15. We expect complete compliance with our direction by the Sessions Judge, Dumka. We should also like the Sessions Judge, Dumka to inform us within a week as to why he could not commence the trial of the petitioners until 30th August, 1977 and why no further steps have been taken in the trial thereafter." 15. However, the Hon'ble Apex Court of India has, in case of Ram Govind Upadhyay (supra), held as under:- "9.XXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXX The consideration of the period of one year spent in jail cannot in our view be arelevant consideration in the matter of grant of bail, more so by reason of the fact that the offence charged is that of murder under Section 302 IPC having the punishment of death or life imprisonment-it is a heinous crime against the society and as such the Court ought to be rather circumspect and cautious in its approach in a matter which stands out to be a social crime of very serious nature." 16. Therefore, this Court is not persuaded to hold that whenever a sessions trial under Section 302 IPC is not concluded within a year, the accused therein shall have to be released on bail. Even otherwise also, no such situation as existed in case of Kadra Pehadiya (supra), is obtaining in the present case. It may also be observed that for major part of last one year i.e. since the later part of the month of March, 2020, the entire country had been facing unprecedented situation of complete/partial lock down in the wake of Covid-19 and the normal functioning of the Courts has been hampered. In these circumstances also, no exception can be taken of pendency of the trial against the petitioner under Section 302 IPC for last one year. 17. Therefore, in considered opinion of this Court, the petitioner cannot be extended benefit of bail solely on account of pendency of sessions trial under Section 302 IPC for more than a year. 18. Contention of the learned counsel for the petitioner that framing of charges against the petitioner, after rejection of his first bail application, amounts to substantial change in circumstance entitling him for grant of bail, is misconceived and deserves to be rejected. 18. Contention of the learned counsel for the petitioner that framing of charges against the petitioner, after rejection of his first bail application, amounts to substantial change in circumstance entitling him for grant of bail, is misconceived and deserves to be rejected. A perusal of the order framing charges against the petitioner reveals that beside other charges, charges under Section 302 IPC in alternate Section 302/149 as well as Section 307/149 IPC have been framed against him. Thus, charges framed against the petitioner only strengthen the allegations contained against him in the charge-sheet. In these circumstances, mere framing of charge cannot be reckoned as substantial change in circumstance entitling the petitioner for grant of bail. 19. Resultantly, the second bail application is dismissed.