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2025 DIGILAW 316 (HP)

Lovely v. State of Himachal Pradesh

2025-03-07

SUSHIL KUKREJA

body2025
JUDGMENT : Sushil Kukreja, J. 1. By way of instant petition filed under Section 483 of Bhartiya Nagarik Suraksha Sanhita, 2023 (for short “BNSS”), the petitioner is seeking bail in Case FIR No. 35/2022, dated 20.02.2022, under Sections 302 & 201 of the Indian Penal Code (for short “IPC”), registered at Police Station Damtal, District Kangra, H.P. 2. The facts giving rise to the instant petition can be summarized as under: (a) On 20.02.2022, around 08:45 a.m., on the basis of some information, the police party rushed to the spot near Sangam Dhaba and found dead body of a person lying there. The deceased person had sustained injuries on his left eye, back side of his head and on his right hand. Police did not find any document relating to the identity of the deceased. Police found blood stained bricks, stones and soil around the dead body and despite inquiries from the local persons, the identity of the deceased could not be ascertained. Subsequently, a forensic team visited the spot and collected scientific samples for analysis. The place of occurrence was photographed. Thereafter, the police registered a case under the apt Sections of IPC and the investigation commenced. The dead body was sent for postmortem examination to Civil Hospital, Nurpur, but due to lack of facilities for conducting postmortem examination at Civil Hospital, Nurpur, postmortem examination was conducted at RPGMC, Tanda. (b) On 21.02.2022 one Bhajan Singh, visited the police station, and identified the deceased to be his nephew Kanchan Singh. The dead body was handed over to him for performing last rites. The statement of eye witness Surinder was recorded under Section 161 Cr.P.C. and his statement under Section 164 Cr.P.C. was also recorded and videographed. He stated that he used to work in the Sangam Dhaba and on 19.02.2022 deceased Kanchan came there and asked the owner-Satnaam for a room. On being asked the deceased did not have his Aadhar card, so the owner refused to give him room. After 10 minutes deceased again came there and the owner gave him a room for Rs.700. The deceased went inside the room and started consuming liquor and afterwards he started roaming in between Dhaba and the room. Surinder further stated that owner of the dhabha went to his house around 11:00 p.m. and son of the owner, Lovely (petitioner herein), who was also inebriated, was in the dhaba. The deceased went inside the room and started consuming liquor and afterwards he started roaming in between Dhaba and the room. Surinder further stated that owner of the dhabha went to his house around 11:00 p.m. and son of the owner, Lovely (petitioner herein), who was also inebriated, was in the dhaba. Surinder told the petitioner that the deceased was using abusive language, on this the petitioner went to the room of the deceased and a scuffle started between the petitioner and the deceased. The petitioner pushed the deceased, resultantly his head struck against the wall and he fell unconscious and blood started oozing out. Thereafter, the petitioner carried the deceased on his shoulder and brought him down. The petitioner closed the shutter of the dhaba and he told Surinder that he would throw the deceased. Surinder also stated that thereafter he went to sleep and through the window of his room, he saw the petitioner throwing the deceased on a stack of soil and bricks and the petitioner also took the mobile phone of the deceased and gave a blow on the head of the deceased with a brick. Subsequently, the petitioner was arrested on 22.2.2022. After completion of the investigation, police presented the challan in the learned Trial Court. 3. The bail application has been filed by the petitioner on the ground that he is innocent and has been falsely implicated in the present case. The learned counsel for the petitioner contended that the petitioner is in judicial custody since 22.02.2022 and the trial is not going to be completed in near future, as till date, out of total 21 witnesses cited by the prosecution only 12 witnesses have been examined, therefore, the petitioner deserves to be released on bail, as no fruitful purpose would be served by keeping him behind the bars for an unlimited period. He further contended that there is inordinate delay in conclusion of trial, which infringes upon the right of speedy trial of the petitioner, as such, he is entitled to be released on bail on the ground that his right of speedy trial has been violated. 4. Per contra, the learned Deputy Advocate General opposed the bail application on the ground that keeping in view the gravity of the offence alleged to have been committed by the petitioner, he is not entitled to be enlarged on bail. 4. Per contra, the learned Deputy Advocate General opposed the bail application on the ground that keeping in view the gravity of the offence alleged to have been committed by the petitioner, he is not entitled to be enlarged on bail. He further contended that the present bail application filed by the petitioner is the successive one, which is liable to be dismissed as there is no change in circumstances after the dismissal of the earlier bail application. 5. Pertinently, the present is the successive bail application filed by the petitioner. Earlier, the petitioner had preferred a bail application being Cr. MP (M) No. 1989 of 2023 before this Court, seeking regular bail, which came to be dismissed vide order dated 10.11.2023, as this Court was of the opinion that prima facie, the nature of the allegations made against the petitioner are serious in nature and mere fact that the petitioner remained in custody for the last about one year and nine months is no ground to grant him bail. 6. It is a well settled principle of law that when the successive application comes before the Court, the Court would be very conscious while considering the same. As held by the Hon’ble Apex Court in State of Maharashtra Vs. Captain Buddhikota Subha Rao, AIR 1989 SC 2292 , that successive bail application can be entertained by the Court when substantial change is established by the accused, which would entitle him for getting bail in successive bail application. The Court should not pass the order of releasing him on bail in successive bail application merely establishing some cosmetic change between time gap of two applications. There should be drastic change during the period between two applications, which would entitle the accused for bail. 7. In State of Tamil Nadu vs. S.A. Raja, (2005) 8 SCC 380 , Hon'ble Supreme Court has categorically held that when there are no changed circumstances, the successive bail application is nothing but review of the earlier application which cannot be maintainable. The relevant portion of the aforesaid judgment reads as under:- “9. 7. In State of Tamil Nadu vs. S.A. Raja, (2005) 8 SCC 380 , Hon'ble Supreme Court has categorically held that when there are no changed circumstances, the successive bail application is nothing but review of the earlier application which cannot be maintainable. The relevant portion of the aforesaid judgment reads as under:- “9. When a learned Single Judge of the same Court had denied bail to the respondent for certain reasons and that order was unsuccessfully challenged before the appellate forum, without there being any major change of circumstances, another fresh application should not have been dealt with within a short span of time unless there were valid grounds giving rise to a tenable case for bail. Of course, the principles of res judicata are not applicable to bail applications, but the repeated filing of the bail applications without there being any change of circumstances would lead to bad precedents.” 8. In State of M.P. vs. Kajad, (2001) 7 SCC 673 Hon'ble Supreme Court held that: “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. and various other judgments.” 9. In the case of Kalyan Chandra Sarkar vs. Rajesh Ranjan, (2004) 7 SCC 528 Hon'ble Supreme Court held as follows: 20."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………." 10. In Virupakshappa Gouda and another vs. State of Karnataka and another, (2017) 5 Supreme Court Cases 406, it is held that: 12. 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………." 10. In Virupakshappa Gouda and another vs. State of Karnataka and another, (2017) 5 Supreme Court Cases 406, it is held that: 12. On a perusal of the order passed by the learned trial Judge,we find that he has been swayed by the factum that when a charge-sheet is filed it amounts to change of circumstance. Needless to Say, filing of the charge-sheet does not in any manner lessen the allegations made by the prosecution. On the contrary, filing of the charge- sheet establishes that after due investigation the investigating agency, having found materials, has placed the charge- sheet for trial of the accused persons. As is further demonstrable, the learned trial Judge has remained absolutely oblivious of the fact that the appellants had moved the special leave petition before this Court for grant of bail and the same was not entertained. Be it noted, the second bail application was filed before the Principal Sessions Judge after filing of the charge-sheet which was challenged in the High Court and that had travelled to this Court. These facts, unfortunately, have not been taken note of by the learned trial Judge……….” 11. Thus, it is the settled position of law that successive bail applications are permissible under the changed circumstances but the change of circumstances must be substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. Without the change in the circumstances, the subsequent bail application would be deemed to be seeking review of the earlier rejection order which is not permissible under criminal law. While entertaining such subsequent bail applications, the Court has a duty to consider the reasons and grounds on which the earlier bail application was rejected and what are the fresh grounds which persuade it warranting the evaluation and consideration of the bail application afresh and to take a view different from the one taken in the earlier application. There must be change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. 12. There must be change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. 12. Learned counsel for the petitioner contended that the petitioner was not named in the FIR and he has been falsely implicated in the present case. He further contended that the case of the prosecution is based upon the disclosure statement, which is otherwise hit by Section 27 of the Evidence Act, especially when witness, i.e. PW-2 Jeet Ram to said disclosure has turned hostile qua the signatures on the same. He also contended that there is no iota of evidence to connect the petitioner with the alleged offence, especially when the person namely Surender Kumar, on whose disclosure statement the petitioner was named, could not be examined, since he has expired. He further contended that spot witnesses, namely Naresh Kumar (PW-1), Jeet Ram (PW-2) and Pawan Kumar (PW-3) and the alleged eye witness Nitin have turned hostile, therefore, the petitioner has made out a case for his release on bail. However, these contentions of learned counsel for the petitioner cannot be considered at the time of deciding the present bail application and the same can only be taken into consideration by the learned trial Court at the time of final arguments. 13. Learned counsel for the petitioner further contended that there is inordinate delay in conclusion of trial, which infringes upon the right of speedy trial of the petitioner as he is in custody since 22.02.2022, which would entitle him for release on bail. However, in the facts and circumstances of the present case, this contention of learned counsel for the petitioner cannot be accepted, as the trial has already commenced and out of total 21 witnesses cited by the prosecution, 12 witnesses have already been examined and now the case is listed for recording the statements of 03 prosecution witnesses on 23.04.2025, therefore, there is every likelihood of the completion of trial in near future. 14. The learned counsel for the petitioner, has failed to point out any substantial change in the circumstances after the dismissal of his earlier bail application. 14. The learned counsel for the petitioner, has failed to point out any substantial change in the circumstances after the dismissal of his earlier bail application. Hence, in view of the facts and circumstances of the present case, this Court is of the view that after the dismissal of the earlier bail application, there is no substantial change in the circumstances which would entitle the petitioner for releasing him on bail. Therefore, in absence of any changed circumstances, the present successive application for bail cannot be entertained. Hence, for the reasons mentioned above, the bail application filed by the petitioner is dismissed. 15. Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the merits of the case and the trial Court will not be influenced by any observations made therein. However, as the petitioner is behind the bars since 22.02.2022, the learned trial Court is expected to conclude the trial as expeditiously as possible. 15. Pending application(s), if any, stands disposed of.