Allahabad High Court
Raju Raidas vs State Of U.P. on 10 December, 2018
Author: Anil Kumar
Bench: Anil Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 10 C.M. Application No. 76982 of 2018 ( Third Bail Application) Case :- CRIMINAL APPEAL No. - 323 of 2016 Appellant :- Raju Raidas Respondent :- State Of U.P. Counsel for Appellant :- O.P. Tiwari,O.P. Tiwari Counsel for Respondent :- Govt. Advocate Hon'ble Anil Kumar,J.
Hon'ble Mohd. Faiz Alam Khan,J.
Heard Sri O.P.Tiwari, learned counsel for the accused-appellant/ Raju Raidas and Sri Chandra Shekhar Pandey, learned Additional Government Advocate on third bail application pending in appeal.
The appellant is convicted in Sessions Trial No. 435 of 2012, arising out of Case Crime No.2027 of 2012, under sections 302 read with 34 IPC, Police Station- Kotwali, district -Unnao, and has been sentenced for maximum term of life imprisonment with fine stipulations vide judgment and order dated 16.2.2016 passed by the Addl. Sessions Judge, Court No.1, Unnao.
This third bail application has been moved on behalf of the accused- appellant/ Raju Raidas.
The first bail application of the accused-appellant/Raju Raidas was rejected vide order dated 7.11.2017, which on reproduction reads as under:-
"Heard learned counsel for the appellant and learned A.G.A. on the bail application.
The appellant is convict of Sessions Trial No. 435 of 2012, arising out of Case Crime No.2027 of 2012, under sections 302 read with 34 IPC, Police Station- Kotwali, district-Unnao, and has been sentenced for maximum term of life imprisonment with fine stipulations vide judgment and order dated 16.2.2016 passed by the Addl. Sessions Judge, Court No.1, Unnao.
In the statement given by PW-1 in the court, she has stated that applicant with co-accused came to her house and threatened with firearm to send the deceased with him or he will kill his son, on being scared she sent the deceased alongwith the applicant and the three of them went on motorcycle. Soon thereafter dead body of the deceased was recovered, the last seen evidence is proved. On the recovery of firearm from co-accused, he stated that this the firearm which was used by the applicant for killing the deceased. From medical evidence it is proved that deceased died due to firearm injury. We do not find any good ground to release the applicant on bail.
Accordingly, the bail application of applicant Raju Raidas is rejected."
The second bail application moved on behalf of the accused- appellant was dismissed as not pressed by order dated 25.4.2018, which on reproduction reads as under:-
" Sri O.P. Tiwari, learned counsel for the applicant/appellant submits that he does not want to press the second application for bail at this stage.
Accordingly, the second bail application is dismissed as not pressed."
Sri O.P. Tiwari, learned counsel for the accused-appellant while pressing the third bail application submits that although the first bail application was rejected on merit but the relevant points have not been considered while rejecting the same.
He further submits that Savtri Devi ( P.W.-1) / complainant has lodged an F.I.R. on 1.9.2012 at about 10.00 a.m. stating therein that her daughter Julee was married with accused appellant Raju Raidas about two years back as per Hindu Customs. As per version of the F.I.R. accused appellant after marriage, demanded dowry. As Savitri Devi / complainant was unable to fulfill the demand of dowry, accused-appellant had beaten her daughter Julee and thrown out from her matrimonial home. Thereafter she resided with her sister's house at Kanpur . Later on Julee was married with Ragunandan Kahar. On 1.9.2012 at about 9 a.m. accused- appellant/ Raju Raidas with one unknown person came to the house of complainant Savitri Devi and took away Julee on his motor cycle . Soon after accused appellant murdered Julee by gun shot at Chaura bridge Naharia.
Learned counsel for the appellant further submits that in the present case Savitri Devi( P.W.-1) is not an eye witness which is evident from the statement given by her under Section 161 Cr.P.C. in which she has categorically stated that when son-in-law/ Suneel came to her house then she knew about her death . Later on she has stated that said fact has been told to her by the police and she found the photo-graph of accused appellant/ Raju Raidas at the place of incident. possession of the deacased at that place .
Accordingly it is submitted by learned counsel for the appellant that said material piece of evidence given by her under Section 161 Cr.P.C. as well as the statement of Susheel Kumar ( P.W.-2) has not been considered by this Court while rejecting the first bail application and the second bail application was rejected as not pressed.
Accordingly, it is submitted by learned counsel for the accused-appellant that keeping in view the above said facts as well as the law laid down by Hon'ble the Apex Court in the case of Babu Sigh and others Vs. State of U.P. ( 1978) 1 SCC 579, third bail application moved on behalf of the accused- appellant/ Raju Raidas may be considered.
Learned counsel for the accused appellant submits that the accused appellant is in jail since 10.9.2012, so his case may also be considered for granting the third bail application of the accused- appellant/ Raju Raidas.
Sri Chandra Shekhar Pandey, learned Additional Government Advocate while opposing the third bail application submits that the points which have been argued by learned counsel for the appellant were also available to him when the first bail application was rejected, so keeping in view of the said fact as well as the law laid down by Division Bench of this Court in the case of Girand Singh Vs. State of U.P. reported in 2010(2) ACR 1362 , no case is made out to release the accused appellant on bail.
He further submits that even otherwise the statement given by Savitri Devi/ complainant under section 161 Cr.P.C. is not a substantive piece of evidence , so the present third bail application of the accused-appellant/ Raju Raidas is liable to be rejected.
We have heard learned counsel for the parties and gone through the record .
Hon'ble the Apex court in the case of Babu Singh and others (supra) has held in para 2 , the relevant portion of the same is quoted as under :-
"But an order refusing an application for bail does not necessarily preclude another, on a later occasion, giving more materials, further developments and different consideration. While we surely must set store by this circumstance, we cannot accede to the faint plea that we are barred from second consideration at a later stage. An interim direction is not a conclusive adjudication, and updated reconsideration is not over-turning an earlier negation."
Supreme Court in Pandurang and others vs. State Of Hyderabad reported in AIR 1955 page 216 observed that while deciding the cases on facts, more so in criminal cases, the court should bear in mind that each case must rest on its own facts and the similarity of facts in one case cannot be used to bear in mind the conclusion of fact in another case.
It is also a well established principle that while considering the ratio laid down in one case, the court will have to bear in mind that every judgment must be read as applicable to the particular facts proved or assumed to be true. Since the generality of expressions which may be found therein are not intended to be expositions of the whole of the law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. A case is only an authority for what it actually decides, and not what logically follows from it, in this regard reference may be taken of Ambika Querry Works Vs. Stae Of Gujrat & Others reported in AIR 1987 SC page 1073.
Further in the case of Satya Pal Vs. State of U.P., 1999 Cri LJ 3709: 1999(3) ACR 1985 (FB) the following question was referred by a learned Single Judge to be decided by a larger Bench in respect to grant of second bail application :-
" Whether a fresh argument in a second bail application for a accused should be allowed to be advanced on those very facts that were available to the accused while the first bail application was moved and rejected?"
In this regard in the case of Satya Pal (supra) this Court has held in paras 8 and 9 as under:-
"8. This above question of law was referred to the Division Bench for the view taken in the case of Gama versus State of U.P., 1978 CRI.L.J. 242 was thus:-
" Even though it may be second or third bail application, but unless it is apparent from a reading of the first bail order that the point urged in the subsequent bail applications was also considered and rejected, it can not be said that the point urged in the second or third bail application would be deemed to have been considered in the first bail application just by implication."
9.On the reference, the Division Bench after hearing and considering all the relevant laws on this point, overruled the view taken by the learned Single Judge in Gama versus State of U.P. (supra) holding that-
" fresh arguments in the second bail application for an accused can not be allowed to be advanced on those very facts that were available to the accused while the first bail application was moved and rejected."
In the case of Girand Singh (supra) this Court after taking into consideration the law laid down by Hon'ble Apex Court in the case of Babu Singh and others ( supra) and Satya Pal( supra) held as under, relevant para no.16 to 21 are quoted below:-
"16. In Babu Singh's case, the Hon'ble Apex Court has placed its reliance again on Kashmira Singh's case and quoted in paragraph 24 of its judgment the entire observations given in Kashmira's Singh case, which have been quoted above. In paragraph 24 of Babu Singh's case it has been observed that-
"Yet another factor which heavily tips the scales of justice in favour of release pendente lite is the thought best expressed by Justice Bhagwati speaking for the Court in Kashmira Singh versus The State of Punjab".
Then the above quoted paragraph of Kashmira Singh's case has been quoted as follows:-
"The appellant contends......................against his conviction and sentence."
17.According to the learned AGA, this is not at all the practice of this High Court to reject the bail application after conviction as a matter of routine. He also emphasized that the appeals in the High Court are admitted as a matter of right and not because the accused has demonstrated a good prima facie case in his favour or after finding a reasonable prospect of his acquittal. In fact the considerations to admit appeal after conviction in the High Court are entirely different from the considerations of admitting SLPs. in the Supreme Court. In the High Court the matter of bail in appeal is adjudicated after going through the entire merits of the case and bails are allowed or rejected not out of any practice but on the basis of merits of the case. If the accused appellant succeeds to establish a prima facie case in his favour or to show serious infirmity in the judgment of conviction passed against him or if he succeeds to demonstrate a fair likelihood of his acquittal after hearing he is always granted bail. The bail of the accused is rejected only when he fails to point out any serious infirmity in the prosecution case or in the judgment of conviction and fails to establish any prima facie case in his favour or if otherwise there are other special reasons to reject his bail.
18.We agree with the above submissions made on behalf of the State. It shall be really an irony and paradox to reject the bail of the accused even after finding a good prima facie case in favour of the accused and compel him to languish in jail because of inability to hear the case finally. But here the situation is entirely different. The first bail application of the accused had been rejected because the Court did not see any prima facie good case in favour of the accused. In other words, we can see that this Court prima facie has not seen any good prospect of a future acquittal of the accused on the basis of the merits of the case. We have once again looked into the facts of the case and perused the entire record. The accused is the main assailant who has used firearm and has hit the deceased on the vital part as a result of which the deceased succumbed to death. The medical report completely corroborates the prosecution case and the injured witness fortifies the allegations against the accused thoroughly. Prima facie, there is hardly anything to indicate anything wrong in the judgment of conviction and we see no reason to allow the second bail application on merits at all.
19.We have also taken note of fact that in Babu's Singh case all the accused persons were acquitted by the Sessions Court but subsequently the findings of the acquittal were reversed by the High Court and they were given life imprisonment. It was against that reversal of acquittal into conviction that the accused of that case had approached the Hon'ble Apex Court. This fact was given due importance by the Apex Court and while judging the desirability of granting bail the Hon'ble Apex Court observed in paragraph 20 as follows:-
" Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when the appeal before this Court pends? Yes,it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the Court's verdict once."
20.The above observation was also found germane to decide the question of bail obviously because the judicial declaration of innocence by one Court has an important bearing to weigh the nature of accusation, the nature of evidence in support of the accusation and the severity of the punishment which conviction will entail. In the present case, the trial Court has not only found the accused guilty of murder but even on a prima facie reappraisal of the evidence by the High Court at the time of hearing on the point of bail found nothing incorrect in the findings of the lower Court.
21.We think it proper to clarify that though as has been discussed earlier, ordinarily there is very little chance to allow the subsequent bail application after conviction and after the first bail application has been rejected but there may be exceptional cases where some such material may be furnished or some such further developments may take place in view of which the continuation of detention of the accused may revolt against the judicial conscience of the Court. 'More material, further developments and different considerations' as referred in Babu Singh's case, which on a later occasion might persuade the Court to reconsider the point of bail must be, in our opinion, not trivial cosmetic changes nor they can be trifling considerations, they must be facts or situations or developments of grave magnitude and must be pregnant with crucial and conclusive implications. Only in such situation alone where the subsequent disclosure of facts may render the rejection of the first bail application wholly unjustifiable or repugnant to judicial concurrence or in conflict with some directions of the Apex Court, that the Court may entertain and allow the second bail."
In th case of State of Madhya Pradesh vs. Kajad, 2001 SCC (Cri) 1520 the Apex Court has observed in para 8 that:-
"8-..........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 Vs. Harbhajan Singh Bajwa, (2001 [1] SCC 169) and various other judgments."
In this context reference may be made to the observations made by the Apex Court in State of Maharashtra vs. Captain Buddhikota Subha Rao (AIR 1989 SC 2292) wherein the Apex Court has observed that:-
"7.... Once that application was rejected there was no question of granting a similar prayer. That is virtually overruling the earlier decision without there being a change in the fact situation. And when we speak of change, we mean a substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or not consequence...."
The Apex Court has further explained the concept of "change in circumstance" in the case of Kalyan Chanrda Sarkar v. Rajesh Ranjan @ Pappu Yadav & Anr. reported in AIR 2005 SC 921 and the Apex Court has observed and held that:-
"19...........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. The decisions given by a superior forum, undoubtedly, is binding on the subordinate fora 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."
In view of said position of law as stated herein above,the points on which learned counsel for the appellant have argued were available to him when first bail application of accused appellant was rejected on merit by means of order dated 7.11.2017, so in view of the ratio of law as laid down in the authorities discussed herein above ,the present third bail application is not maintainable on the same facts.
Another point which has been argued by learned counsel for the appellant that the accused appellant is in jail since 10.9.2012.
So far as the matter in respect to period of incarceration is concerned, a Division Bench of this Court has passed an order dated 4.5.2018 on Crl Misc. Application No.124973 of 2017 In re; Criminal Appeal No.403 of 2015, Bholu Vs. State of U.P. in which one of us ( Anil Kumar,J) is a member , after considering various judgments which have been passed for and against the grant of bail under Section 389 Cr.P.C. as well as Article 21 of the Constitution of India on the point of period of incarceration, held as under:
"In the light of the above said facts, although High Court has got power under Section 389 Cr.P.C. for suspension of sentence pending appeal and release of appellant on bail taking into consideration the period of incarceration of an accused-appellant when there is no likelihood that the present appeal may be listed for hearing in near future but no straight-jacket formula can be laid down only for grating bail on the ground of period of incarceration.
The said power should be exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences but such power must be exercised with great circumspection and caution.
The court has to consider all the facts as are pleaded by the applicant, in a judicious manner and examine whether the facts and circumstances involved in the case are such, that they warrant such a course of action by it.
The court additionally, must record in writing, its reasons for granting such relief and discuss in detailed the background of the appellant, the nature of the crime, manner in which it was committed, etc. and the evidence which has been produced by the prosecution in order to prove that crime has been committed by the accused-appellant and in what manner, the same has been dealt by the trial court while passing the judgment of conviction.
In the case when the accused are old aged person or suffering from serious medical ailment, his bail application be considered on the ground of period of his incarceration vis-a-vis the crime committed by him for which he has sent to jail.
The period of incarceration of the accused-appellant cannot be a ground for granting his bail where the grant of bail is forbidden in law."
Looking into peculiar facts and circumstances of the case , we do not find any good ground or reason to consider the present third bail application of the accused-appellant/ Raju Raidas on the point of period of incarceration.
Accordingly, the third bail application moved on behalf of the accused-appellant/ Raju Raidas is rejected.
(Mohd. Faiz Alam Khan,J.) (Anil Kumar,J.) Order Date :- 10.12.2018 dk/