Rajasthan High Court - Jaipur
Narender Singh vs State Of Rajasthan Through Pp on 20 April, 2012
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT NARENDRA SINGH VS. STATE OF RAJ. S.B. Criminal Misc. 2nd Bail Application No. 4084 of 2012 under section 438 Cr.P.C. in the matter of FIR No. 56/2012 registered at Police Station Laxmanagarh, District Sikar for the offence under sections 147, 148, 149, 307, 323, 341, 342, and 427 IPC. Date of Order : April 20, 2012 PRESENT HONBLE MR. JUSTICE MAHESH CHANDRA SHARMA Mr. Madhav Mitra, for the petitioner Mr. Pradeep Shrimal, PP for the State. --- REPORTABLE BY THE COURT :
This criminal Misc. 2nd Bail Application has been filed by the accused petitioner under section 438 Cr.P.C. in FIR No. 56/2012 registered at Police Station Laxmanagarh, District Sikar for the offence under sections 147, 148, 149, 307, 323, 341, 342, and 427 IPC.
2. It may be mentioned that earlier the accused petitioner also filed bail application under section 438 Cr.P.C. on 12.4.2012. On 13.4.2012 this court passed the following order while dismissing the bail application No. 3855 of 2012 of the accused petitioner :
13.4.2012 Mr. Madhav Mitra for the petitioner Mr. Peeyush Kumar, P.P. Learned counsel states that he may be permitted to withdraw this bail application with liberty to the petitioner to surrender himself beforethe learned trial court. He is permitted to do so.
The bail application is dismissed with the aforesaid liberty.
3. The first bail application was filed against the order dated 2.3.2012 of the Sessions Judge Sikar dismissing the anticipatory bail application of the petitioner. It has been argued by Mr. Madhav Mitra, learned counsel for the petitioner that the earlier bail application filed by the petitioner was listed before this court on 13.4.2012 and on that very day his associate Mr. Pallav Sharma appeared before this court and requested for adjourning the bail application since he was out of station to attend the case listed before the Supreme Court. This court directed his associate to argue the matter. It has been further argued that inadvertantly in the order of bail application withdrawal of bail application has been typed wherein his attendance has also been mentioned. In these circumstances, it was argued by Mr. Madhav Mitra that the bail application has not been decided on merits and the grounds taken in the application may be treated as part and parcel of this bail applicaion. The learned counsel has argued that the incident as alleged in the FIR took place on 20.2.2012 and on a written complaint which was lodged on 21.2.2012 n FIR No. 56/2012 was registered alleging that the accused petitioner and his group deliberately made an attack on the complainant and his wife while they were going from Laxmangarh to Sikar. Prior to the FIR No. 56/2012 already an FIR has been filed by the accused petitioner which is FIR No. 53 of 2012 at the Police Station Laxmangarh on 19.2.2012 alleging that the complainant Bhupendra Singh Mahla came to accused petitioner's College and gave beating to him as well as his office staff and took away Rs. 9400/- from the accounts office. On this date the accused petitioner came to the College for taking practical papers for this reason the female externals were also called and with whom the complainant also misbehaved. The dispute is with regard to management of college whereas complainant and petitioner are real brothers. The learned counsel has argued that actually the incident took place between other brothers but out of vengeance due to previous FIR No. 53/2012 the name of the petitioner was also shown as assailant whereas he was never present at the time of occurrence. The FIR is apparently exaggeration of allegation. No medical evidence is available on the record to constitute the offence under section 307 IPC. The learned counsel has further argued that the consecutive application under section 438 Cr.P.C. is not barred by statute and this Court and the Apex Court has time and gain observed that such applications can be considered. According to the counsel his earlier bail application was not decided on merits and in these circumstances it was prayed that this bail application may be decided on merits. He has placed reliance on Ganesh Raj vs. State of Rajasthan and others (2005) 2 Western Law Cases (Raj.) 327, Siddharam Salingappa Mehtre vs. State of Maharashtra and others (AIR 2011 SC 312) and Babu Singh and others vs. The State of Uttar Pradesh (AIR 1978 SC 527).
4. Mr. Pradeep Shrimal, Public Prosecutor for the State has categorically opposed the arguments of the learned counsel for the petitioner. It was argued that this second bail application now should not be entertained as there is no new evidence or document to be considered again to rehear the arguments on the second bail application under section 438 Cr.P.C. The petitioner has not surrendered before the trial court and he has again filed the bail application under section 438 Cr.P.C. alleging that his earlier bail application was not decided on merits. The Public Prosecutor in these circumstances has argued that this second bail application of the accused petitioner under section 438 Cr.P.C. may be rejected.
5. I have heard Mr. Madhav Mitra,, learned counsel for the petitioner and Mr. Pradeep Shrimal, Public Prosecutor appearing for the State of Rajasthan and have also gone through the order dated 2.3.2012 passed by the Sessions Judge Sikar rejecting the bail application of the accused petitioner and the order dated 13.4.2012 passed by this couret rejecting the bail application as withdrawn and also looked into the rulings cited by the learned counsel for the petitioner.
6. Before proceeding further it would be necessary to have a look at the rulings cited by the learned counsel for the petitioner.
Head notes B and C of the Apex Court judgment in Babu Singh and others vs. The State of Uttar Pradesh (AIR 1978 SC 527) reads as under :
B) Criminal P.C. (2 of 1974), S.389(1) - APPEAL - BAIL - Bail - Pendency of appeal before Supreme Court - Appellants, if entitled to bail. Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act (28 of 1970), S.2(a).
The six appellants were acquitted by the Sessions judge on 4-11-1972 in a murder case which was an outcome of faction fight or feud between two clans in a village. In appeal by State against acquittal, the High Court on 20-5-1977 convicted the appellants and sentenced them to life imprisonment Five appellant had suffered sentence in some measure for 20 months and the sixth one was on bail. These appellants were the entire male members of their family and all of them were in jail. As such, their defence was likely to be jeopardised. During appeal before High Court, the State did not press for their custody. There was nothing to indicate that during the long period of five years when appellants had been out of prison pending appeal before High Court there had been any conduct on their part suggestive of disturbing the peace of the locality threatening any one in the village or otherwise thwarting the life of the community or the course of justice. On application by appellants for bail during pendency of their appeal before Supreme Court:
Held that subject to certain safeguards the appellants were entitled to bail. Accordingly, they were directed to be released on bail on their own recognisances in a sum of Rupees 5,000/- each with one surety for each in like sum subject to two conditions that they shall not enter the village and that they shall report at particular police station once every week. AIR 1977 Sc 2147 Followed. (Paras 25, 26) (C) Constitution of India, Art.21 - RIGHT TO LIFE - BAIL - Personal liberty - Deprivation of - Refusal of bail Considerations.
Criminal P.C. (2 of 1974), S.436.Personal liberty deprived when bail is refused, is too precious a value of our constitutional system recognised under Art. 21 that the crucial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorise impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of 'procedure established by law'. So deprivation of personal freedom, ephemeral or enduring, must be founded on the most serious considerations relevant to the welfare objectives of society, specified in the Constitution. (Paras 8, 9) Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for bi-focal interests of justice to the individual involved and society affected. Criteria germane to exercise of bail discretion pointed out. (Paras 16, 17, 18, 19,20, 21, 22, 23) The case of Babu Singh (supra) is not applicable to the facts and circumstances of this case as in that case the accused petitioners were convicted by the High Court and the Apex Court granted bail to the accused petitioner wherein they were serving the sentence and were on bail before the High Court against an appeal of acquittal by the Sessions Judge.
In Ganesh Raj vs. State of Rajasthan and others (2005) 2 Western Law Cases (Raj.) 327, the Full Bench of this court held as under :
17. Having scanned the language of section 438 and 439 Cr.P.C., we find that there is no substantial difference between section 438 and 439, as regards the appreciation of the case as to whether or not a bail is to be granted. The only distinction is that in a case under section 438, the person who approaches the court apprehends that he may be arrested without any basis whereas under section 439, such person approaches the court after his arrest. Evidently the power to grant anticipatory bail does not flow from Article 21 of the Constitution but it has been conferred by the Statute enacted by the Parliament whereas provisions contained in section 439 flow from Article 21 of the Constitution of India. If bail application of the accused under section 439 is dismissed once, he can move second and successive bail application on the ground of substantial change in factual situation between the earlier bail application and the subsequent one, but filing of second and successive bail applications on the basis of new arguments and new twists on same facts cannot be encouraged. Speedy trial is a Constitutional right of the accused provided to him by Article 21 of the Constitution. If first application of the accused who is in custody is dismissed on merits and the trial is delayed, the accused has a right to make second bail application on the ground of delayed trial. Section 439 relates to Constitutional right of the accused whereas section 438 to his statutory right. The provisions of section 438 should not be put to abuse at the instance of unscrupulous accused.
18. Interpreting Section 438(1) Cr.P.C the Constitution Bench of Apex Court in Gurbaksh Singh Vs. State of Punjab (supra) indicated thus:-
Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has reason to believe that he may be arrested for a non bailable offence. The use of the expression reason to believe shows that the belief that the applicant may be arrested must be founded on reasonable grounds. Mere `fear' is not `belief' or which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be arrested. Section 438(1), therefore, can not be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applicants for anticipatory bail will be, as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely.
19. Very recently considering the liberty of an individual the Apex Court in Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav (2005 I Apex Decisions (S.C.) 640) propounded thus:-
(para 17) 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 non bailable 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 in spite 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 there is a 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.
Their Lordships further observed in para 18 as under:-
... Ordinarily, the issues which had been canvassed earlier would not be permitted to be re-agitated on the same grounds, as it would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting.
In para 19 it was indicated thus:-
... 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.
(Emphasis supplied)
20. Can a formula be devised conferring the power of granting anticipatory bail in strait jacket?
Answering this question in negative, the Constitution Bench in Gurbaksh Singh Vs. State of Punjab (supra) observed that while laying down cast iron rules in a matter like granting anticipatory bail, it is apt to be overlooked that even Judges can have but an imperfect awareness of the needs of new situation. Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions and it will be strange if, by employing judicial artifices and techniques, discretion conferred upon the courts is cut down by devising a strait jacket formula.
21. In Suresh Chand Vs. State of Rajasthan (supra) Single Bench of this Court held that after dismissal of first bail application under section 438 Cr.P.C by the High Court, the accused is not entitled to ask for the same relief again by making second anticipatory bail application as the accusation against the accused remains the same. Once anticipatory bail is denied it cannot be made again on the basis of new arguments and new twists. Fact-situation in respect of accusation of non bailable offence only changes with the filing of final report by the Investigating Officer under section 169 Cr.P.C. and not before and when fact-situation in respect of accusation is changed and final report is filed there is no need of seeking anticipatory bail because in that event the Investigating Officer may release the accused on his executing a personal bond with or without sureties.
22. The above observations appear to have been made in reposing utmost faith in the Investigating Agency. But this eventuality escaped attention as to what would happen if the Investigating Officer despite change in fact situation does not file final report. Possibility of causing needless inconvenience, harassment and humiliation to the accused by the police in such a situation cannot be ruled out. Again coming to Gurbaksh Singh Vs. State of Punjab (supra) we notice that the Supreme Court narrated the situation and contingencies for invoking power under section 438. In para 8 of the judgment it was indicated thus:-
No one can accuse the police of possessing a healing touch nor indeed does anyone have misgivings in regard to constraints consequent upon confinement in police custody. But, society has come to accept and acquiesce in all that follows upon a police arrest with a certain amount of sang-froid, in so far as the ordinary rule of criminal investigation is concerned. It is the normal day-to-day business of the police to investigate into charges brought before them and broadly and generally, they have nothing to gain, not favours at any rate, by subjecting ordinary criminals to needless harassment. But the crimes, the criminals and even the complainants can occasionally possess extraordinary features. When the even flow of the life becomes turbid, the police can be called upon to inquire into charges arising out of political antagonism. The powerful processes of criminal law can then be perverted for achieving extraneous ends. Attendant upon such investigations , when the police are not free agents within their sphere of duty, is a great amount of inconvenience, harassment and humiliation. That can even take the form of the parading of a respectable person in hand-cuffs, apparently on way to a court of justice. The foul deed is done when an adversary, is exposed to social ridicule and obloquy, no matter when and whether a conviction is secured or is at all possible. It is in order to meet such situations, though not limited to these contingencies, that the power to grant anticipatory bail was introduced into the Code of 1973.
23. While exercising powers under section 438 the Court is duty bound to strike a balance between the individual's right to personal freedom and the investigational right of the police. But the provisions of anticipatory bail should not be put to abuse at the instance of unscrupulous petitioners.
24. The argument of learned Additional Advocate General that the filing of successive bail application is barred by Section 362, has no merit. The principles of res-judicata and such analogoues principles are not applicable in criminal proceeding [vide Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav (supra)]
25. In the ultimate analysis, placing reliance on the ratio indicated in Kalyan Chandra Sarkar's case (supra), we hold that second or subsequent bail application under section 438 Cr.P.C. can be filed 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. Second or subsequent anticipatory bail application shall not be entertained on the ground of new circumstances, further developments, different considerations, some more details, new documents or illness of the accused under no circumstances the second or successive anticipatory bail application shall be entertained by the Sessions Judge/ Additional Sessions Judge.
26. The reference is answered accordingly. Let the matter be placed before the appropriate Bench.
The Full Bench of this court in the above case held that second or subsequent bail application under section 438 Cr.P.C. can be filed 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.
The principles in the Full Bench judgment of this court are also not applicable to the facts of this case as there is no change in fact situation which requires the consideration of this second bail application of the accused petitioner.
In Siddharam Salingappa Mehtre vs. State of Maharashtra and others (AIR 2011 SC 312), the Apex Court held as under in Head note 'E', as under :
(E) Criminal P.C. (2 of 1974), S.438 - ANTICIPATORY BAIL - Anticipatory bail - Grant on refusal of - Should necessarily depend on facts and circumstances of each case - Factors to be considered, stated.
The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused's likelihood to repeat similar or the other offences.
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
(vii) The Courts must evaluate the entire available material against the accused very carefully. The Court must also clearly comprehened the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the Court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) The Court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. (Para 122) In the above case the principles governing the grant of anticipatory bail have been enunciated by the Apex Court. The bail application of the accused petitioner was earlier considered by this court and on the request of the counsel for the petitioner the bail application was rejected as withdrawn. There is no change in the circumstance so as to consider his second bail application under section 438 Cr.P.C.
7. The Sessions Judge, Sikar in his order dated 2.3.2012 while rejecting the bail application of the accused petitioner observed as under :
???????? ?? ??????? ?????? ???????, ?????????? ???? ???? ??? ????? ????? ??????? ?????? 56/2012 ????? ???????? ???? 147,148, 149, 307, 323, 341, 382, 427 ??.??.??. ??? ???? ???? ?? ???????/????? ????????? ???? ?? ????? ???? ?? ???? ?? ???? ??? ?? ?????? ??????? ?????? ????? ??? ?? ?? ??, ???? ????? ???? ??? ??????? ????? ????? ?????? ?? ?????????? ?? ???? ? ??? ?? ?? ?????? ????? ?? ??? ???- ??? ???????? ??? ??? ???? ????, ??.??. ?????? ????,???????? ???? , ????? ????, ??????? ????, ????????? ????, ??????, ????? ???? ??? 5-7 ???? ??????? ????? ??? ?? ???? ????? ?? ????? ????? ??? ? ????? ????? ?? ??? ?? ????? ?? ????? ?? ??? ??? ??? ????? ?? ?????? ?????? ? ????? ?? ???? ??? ?????? ??? ???? ????? ?? ??? ?? ????? ? ????? ?? ?? ????? ?? ?????? ??? ???? ???????? ?? ?? ??????? ?? ??? ? ??? ?? ?????? ??? ????? ??? ???? ????? ?????? ??? ???? ?????????? ? ?????? ????? ?? ???? ?? ???? ??????? ??? ????? ?????? ???? ??? ???? ?????? ?? ????? ???? ?? ??????? ??? ?? ???? ????? ?? ??? ?? ????? ?? ???? ?? ?????? ?? ??? ??? ???? ????? ??? ?? ??? ????? ?????? ? 50,000 ????? ??? ?? ??????? ?? ???? ?????? ?? ???????? ?? ??? ??????? ???? ???? ?????? ? ???????????? ?? ????? ??? ??????? ?? ????? ?? ???????? ?? ?????? ????? ?? ??? ???? ????? ??????????? ?????? ??? ???? ???
8. I am in agreement with the order passed by the Sessions Judge and looking to the ruling cited by the learned counsel for the petitioner, in my view without commenting on the merits of the case as it will affect the either case of the parties, this second bail application of the accused petitioner stands rejected. As directed earlier in the order dated 13.4.2012, the petitioner is directed to surrender before the trial court.
(M.C. SHARMA )J. OPPareek/ All corrections made in the judgment/order have been incorporated in the judgment/ order being emailed (O P Pareek) PS-cum JW