Allahabad High Court
Dinesh Kumar Gupta @ Tillu ( Third Bail ) vs State Of U.P. on 24 September, 2019
Author: Vikas Kunvar Srivastav
Bench: Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 14 Case :- BAIL No. - 8599 of 2018 Applicant :- Dinesh Kumar Gupta @ Tillu ( Third Bail ) Opposite Party :- State Of U.P. Counsel for Applicant :- Amarjeet Singh Counsel for Opposite Party :- Govt. Advocate Hon'ble Vikas Kunvar Srivastav,J.
Heard Sri Amarjeet Singh, learned counsel for the bail-applicant, learned Additional Government Advocate for the State and perused the material available on record.
This is third bail application under Section 439 Cr.P.C. which has been moved on behalf of the accused-applicant-Dinesh Kumar Gupta @ Tillu who is involved in Case Crime No.189 of 2010, under Sections 302, 201 IPC, Police Station Kakori, District Lucknow.
The First bail application has been dismissed for want of prosecution by a Co-ordinate Bench of this Court vide order dated 27.04.2012. Thereafter, second bail application, moved on all the available grounds has also been decided vide order dated 09.05.2013 in rejection of the bail plea of the accused-applicant. In that order, the Court has observed, the case is based on circumstantial evidence. There is evidence of deceased having been seen lastly with the present applicant. A weapon of assault was recovered from the possession of the applicant. The post mortem report has supported the version of the prosecution. It has been submitted by learned counsel for the applicant that the trial is going on and five witnesses have been examined but none of the witnesses is yet cross-examined.
In the present third bail application, almost all the grounds available at the time of first and second bail plea which have already been decided vide aforesaid orders and the trial is still going on. Even the closure of the evidence is not asserted in ground of the bail plea. There is no new ground in the third bail application with regard to any material change in the circumstances as it was earlier.
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 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...."
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 was rejected on merit by means of order dated 27.04.2012, 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.
In view of the above discussion, I find no new grounds for grant of bail. This third bail application is accordingly rejected. However, learned trial court is directed to dispose of the case, expeditiously, if possible, within a period of six months by examining all the material witnesses positively without any further delay.
Order Date :- 24.9.2019 Saurabh