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2025 DIGILAW 1436 (ALL)

Teekam v. State of U. P.

2025-12-16

ARUN KUMAR SINGH DESHWAL

body2025
JUDGMENT : ARUN KUMAR SINGH DESHWAL, J. 1. Heard Sri Amit Kumar and Sri N.I. Jafri, learned Amicus Curiae for the applicant, Sri Himanshu Kumar, learned A.G.A. for the State and perused the record. 2. This matter was heard on 08.12.2025 and 15.12.2025. Matter was argued on the point, "whether after rejection of bail by Sessions Court on the basis of material available in the case diary, the High Court can entertain the bail application on the basis of material collected during trial though the same was not available before the Sessions Court at the time of rejection of bail application as well as the question whether the second bail application is maintainable on the basis of evidence collected during trial though at the time of rejection of first bail application by the Sessions Court as well as High Court that material was not available". 3. Learned counsel for the applicant as well as amicus curiae, learned Senior Counsel, Sri N.I. Jafari submitted that the power of High Court under Section 439 Cr.P.C./483 BNSS and Sessions Court is concurrent. The High Court can entertain the bail application on any ground even though same was not available before the Sessions Court at the time of rejecting the bail application of the accused. 4. In support of his contention, counsel for the applicant has relied upon the judgement of the Apex Court in the case of Kamal @ Kamal Choudhary vs The State of Madhya Pradesh in Criminal Appeal No.992 of 2025 (arising out of S.L.P. (Criminal) No.808 of 2025) , wherein the Apex Court observed that even after rejection of the first bail application by the High Court, if subsequent material is collected during trial then accused need not to file second bail application before the Sessions Court. It can consider second bail application on the basis of new material collected during trial. To decide the issue, it would be appropriate to quote Section 439 Cr.P.C./483 BNSS, which is as follows; 439. Special powers of High Court or Court of Session regarding bail. It can consider second bail application on the basis of new material collected during trial. To decide the issue, it would be appropriate to quote Section 439 Cr.P.C./483 BNSS, which is as follows; 439. Special powers of High Court or Court of Session regarding bail. (1) A High Court or Court of Session may direct:– (a) that any person accused of an offence and in custody, be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified : Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. [Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code, give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.] (1A) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under sub- section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code.] [Inserted by Criminal Law (Amendment) Act, 2018 (22 of 2018), dated 11.8.2018.] (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. 5. From perusal of Section 439 Cr.P.C., it is clear that the High Court as well as Sessions Court have special power to release a person. 5. From perusal of Section 439 Cr.P.C., it is clear that the High Court as well as Sessions Court have special power to release a person. In this Section, it is not mentioned that before approaching the High Court, a person must approach the Sessions Court. This issue was also considered by the Apex Court in the case of Kamal @ Kamal Choudhary (supra) and Kalyan Chandra Sarkar vs Rajesh Ranjan @ Pappu Yadav and another reported in 2004 (7) SCC 528 , wherein the Apex Court observed that successive bail application on the new material is maintainable before the High Court but subsequent new material must be substantially different. For ready reference, para 6 of the Kamal @ Kamal Choudhary (supra) is quoted as follows; "6. We fail to understand the reasoning adopted by the High Court. Even if an earlier bail application is rejected, an accused can make a fresh application at a subsequent stage on the ground of material change in circumstances. Therefore, it was the duty of the High Court to consider the bail application on merits. However, that has not been done. After the first bail application was rejected, now all the eye witnesses have been examined. This was a major change in circumstance brought about after the dismissal of the first application for bail by the Sessions Court. Considering this fact and considering the long duration of incarceration, the appellant is entitled to be enlarged on bail pending the trial." 6. From above analysis, it is clear that the High Court can entertain the first bail application directly or successive bail application on the basis of new material though same was not available before the Sessions Court but Chapter XVIII, Rule 18 of the Allahabad High Court Rules provides that while filing the bail application in the High Court, it must be annexed the copy of bail rejection order passed by the Sessions Court, but this restriction applies for the first bail application filed after rejection of bail application by the sessions court. For ready reference, Chapter XVIII, Rule 18 of the Allahabad High Court Rules is quoted as under: "18. For ready reference, Chapter XVIII, Rule 18 of the Allahabad High Court Rules is quoted as under: "18. Application for bail other than anticipatory bail :- (1) No application for bail shall be entertained unless accompanied by a copy of judgment or order appealed against or sought to be revised and a copy of order passed by the Sessions Judge on the bail application for the applicant and unless the accused has surrendered except where he has been release on bail after conviction under Section 389 (3) of the Code of Criminal Procedure, 1973. Explanation :- the copy of the order refusing bail passed by the Sessions Judge shall either be a certified copy or the copy furnished by the Sessions Judge free of charge to the accused. (2) Every application for bail in a case which is under investigation or which is pending in a lower Court shall state whether application for bail had or had not been previously made before the Magistrate and the Sessions Judge concerned and the results of such applications, if any. (3) Save in exceptional circumstances- (a) No bail application shall be placed before the Court unless notice thereof has been given to the Government Advocate and a period of two days has elapsed from the date of such notice. (b) If the application for bail has not been moved within seven days after the expiry of the aforesaid period of two days the applicant or his Counsel shall give two days previous notice to the Government Advocate as to the exact date on which such application is intended to be moved. (c) Where the prayer for bail is contained in a petition of appeal or application for revision, notice thereof may be given to the Government Advocate the same day prior to the hearing of such petition or application and the fact of such previous notice having been given, shall be endorsed on such petition or application. Alongwith such notice a certified copy or one attested to be true by the counsel, of the Judgment appealed from or sought to be revised shall also be given to the Government Advocate. Alongwith such notice a certified copy or one attested to be true by the counsel, of the Judgment appealed from or sought to be revised shall also be given to the Government Advocate. (4) Every application for bail shall show prominently in the first page thereof the crime number, the police station by which and the section or sections and the Act or Rules under which the applicant is being prosecuted or has been convicted and whether such application is the first, second or any such subsequent application moved by him before this Court, and shall be accompanied by a copy of the first information report. It shall also state the following particulars, namely:- (a) The date of the alleged occurrence; (b) The date of the applicant's arrest. The Bench Secretary shall while entertaining a bail application for presentation to the court check every page there of and shall affix a rubber stamp containing his initials on every page of bail application and all the annexures thereto before putting it up before the court in token of his having checked, every page of the applications and he shall, thereafter, make the following endorsement on the bail application : 'Moved before Hon'ble ................................ J. on................................... (date)' Similarly the official whose duty it is to receive the bail application from the court after orders, shall affix a rubber stamp containing his initials on the first page of the bail application in token of his having checked that all the pages of the bail application bear the rubber stamp of the Bench Secretary. The rubber stamps containing the initials of the Bench Secretary and the official or officials authorised to receive the fresh bail application from the Court shall be supplied to the Bench Secretaries and the officials by the Registrar of the Court. The application shall not be returned to the applicant or his counsel after the above endorsement has been made. (5) Every page of the application for bail and every page of the annexures thereto shall bear the full signature of the applicant or his counsel. (6) In every such application shall be stated the full particulars of the previous application or applications, if any, moved in this Court by same applicant in respect of the same crime and the date or dates on which such previous application or applications had been rejected. 7. (6) In every such application shall be stated the full particulars of the previous application or applications, if any, moved in this Court by same applicant in respect of the same crime and the date or dates on which such previous application or applications had been rejected. 7. It is also clear from the above noted judgements that successive bail applications can be filed on the basis of new material even though that material is collected during trial and the same was not available before Sessions Court or the High Court at the time of rejection of earlier bail application(s). In view of above established position, this Court is also of the view that second bail application or successive bail applications may be entertained by the High Court on the basis of material collected during trial even though such material was not available before the Sessions Court or High Court while considering the earlier bail application but in appropriate case High Court may direct the applicant to file successive bail application before the Sessions Court on the basis of new material. 8. Coming back to the present case, the instant bail application has been filed with a prayer to release the applicant on bail during the trial in Case Crime No. 62 of 2025, under Sections 115(2), 118(1), 109, 110, 352, 351(2) BNS, Police Station- Mandawar, District Bijnor. 9. Contention of learned counsel for the applicant has submitted that though during investigation the injured has made allegation against the applicant and on considering that material, Sessions Court has rejected the bail application of the applicant but during trial, injured Jeeshan did not support the prosecution so far as the allegation of causing injury on the part of the applicant is concerned and injured was also declared hostile. Therefore, there is no material against the applicant and on the basis of material collected during trial he is entitled to be released on bail. It is lastly submitted that charge sheet has been filed by the police, therefore, there is no requirement for custodial interrogation. The applicant has no criminal history and he is languishing in jail since 11.04.2025. In case, he is granted bail, he will not misuse the liberty of bail and would cooperate in the trial proceedings. 10. It is lastly submitted that charge sheet has been filed by the police, therefore, there is no requirement for custodial interrogation. The applicant has no criminal history and he is languishing in jail since 11.04.2025. In case, he is granted bail, he will not misuse the liberty of bail and would cooperate in the trial proceedings. 10. On the other hand, learned A.G.A. for the State vehemently opposed the prayer for bail but could not dispute the legal position even though the material collected during trial was not available before the Sessions Court at the time of rejection of bail application and the same can be considered at this stage. 11. Thus, considering the entire facts and circumstances of the case, submissions of learned counsel for the parties and taking into account the statement of injured before the trial court, wherein he did not make any allegation against the applicant for causing injury to him and keeping in view the nature of offence, evidence, complicity of accused as well as considering the mandate of the judgement of the Apex Court in the case of Kapil Wadhawan vs Central Bureau of Investigation in SLP No.16953 of 2025 decided on 11.12.2025 and without expressing any opinion on the merits of the case, I am of the opinion that the applicant is entitled to be enlarged on bail. 12. Let the applicant- Teekam involved in the aforementioned crime be released on bail, on his furnishing a personal bond and two sureties each in the like amount, to the satisfaction of the court concerned, with the following conditions:- i. The applicant 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 the Court or to any police officer or tamper with the evidence. ii. The applicant shall cooperate in the trial/investigation sincerely without seeking any adjournment. iii. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail. iv. The applicant shall attend in accordance with the conditions of the bond executed by him. 13. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. 14. iii. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail. iv. The applicant shall attend in accordance with the conditions of the bond executed by him. 13. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. 14. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted. 15. It is made clear that the applicant shall be released on the basis of downloaded copy of this order from the official website of High Court Allahabad and verified by the concerned counsel with the undertaking that the certified copy will be filed within 15 days. 16. It is directed that the trial court shall send the release order to the concerned jail through Bail Order Management System (BOMS) to ensure early release of the applicant. 17. Office is directed to send a copy of this order to the applicant through concerned Jail Superintendent via e-mail or e-prison portal in compliance of the order of the Apex Court in the case of Policy Strategy for Grant of Bail, In Re: Suo Motu Writ Petition (Crl.) No. 4 of 2021 decided on 31.01.2023 reported in (2024) 10 SCC 685.