# Kamlesh Kumar v. State of U.P

- **Citation:** (2008) 2 ILRA 611
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-06-19
- **Bench:** Shiv Shanker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamlesh-kumar-v-state-of-u-p-41036
- **Pages:** 3

## Headnote

Code of Criminal Procedure-Section 439-
Second Bail Application-based on similar
facts those of First Bail Application-no
fresh or new facts brought-cannot be
considered on merit-held-second bail
liable to be rejected.

Held: Para 7

After rejecting the firs bail application,
the new and fresh grounds can only be
considered
and
such
bail
may
be
granted. The rejection order passed in
the first bail application reveals that the
question of locking the door from outside
or inside has already been considered.
The general diary, as contended by
learned counsel for the applicant, was
already in existence at the time of
moving the first bail application even
then this ground cannot be considered in
612 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
second bail application, therefore, there
is no fresh and good ground after
rejecting his first bail application. In
such a circumstances, the contention
made by the learned counsel for the
applicant has no force and his second
bail application is also not liable to be
allowed.

## Text

2 All] Kamlesh Kumar V. State of U.P.
611
order on the final report after perusal of
the case diary. This contention of the
learned counsel for the applicant has also
got force. The order dated 06.06.2006
passed by the Judicial Magistrate/2nd
Additional Civil Judge (J.D.), Rampur in
criminal misc. case no. 523 of 2007 (State
Vs. Safdar) shows that the learned
Magistrate did not apply his mind to the
facts of the case and even the case diary
was not perused by him at the time of
passing this order and the final report has
been accepted merely on the ground that
the complainant is absent and a report
under Section 182 Cr.P.C. has been
submitted by the police for taking action
against the complainant. The learned
Magistrate was required to go through the
case diary and the final report could be
accepted only if there was no evidence at
all to take cognizance and issuance of
process against the accused. It is well
settled principle of law that if there is
evidence in the case diary to take
cognizance and to summon the accused
for trial, then the Magistrate is not bound
to accept the final report, even if the
complainant is absent or has not filed any
protest petition/objections against the
final report. Therefore, the order dated
06.06.2006 also is liable to be quashed, so
that a reasoned order after perusing the
case diary may be passed by the learned
Magistrate on the final report.

10. For the reasons mentioned
herein-above, both the impugned orders
as well as the order dated 06.06.2006
passed by the learned Judicial Magistrate
accepting the final report deserve to be
quashed.

11. Consequently, the application
under Section 482 Cr.P.C. is allowed.
Both
the
impugned
orders
dated
19.06.2007 and 17.09.2007 as well as the
order dated 06.06.2006 accepting final
report are hereby quashed. The learned
Magistrate concerned is directed to pass
fresh reasoned order on the final report in
case crime No. C-3/2005 of P.S. Bhot
(Rampur) and protest petition keeping in
view the observations made in this order.

Application Allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.04.2008

BEFORE
THE HON'BLE SHIV SHANKER, J.

Crl. Misc. II Bail Application 7049 of 2008

Kamlesh Kumar

...Applicant
Versus
State of U.P.

...Opposite Party

Counsel for the Applicant:
Sri. V.P. Srivastava
Sri. Lav Srivastava
Counsel for the Opp. Party:
A.G.A.

Code of Criminal Procedure-Section 439-
Second Bail Application-based on similar
facts those of First Bail Application-no
fresh or new facts brought-cannot be
considered on merit-held-second bail
liable to be rejected.

Held: Para 7

After rejecting the firs bail application,
the new and fresh grounds can only be
considered
and
such
bail
may
be
granted. The rejection order passed in
the first bail application reveals that the
question of locking the door from outside
or inside has already been considered.
The general diary, as contended by
learned counsel for the applicant, was
already in existence at the time of
moving the first bail application even
then this ground cannot be considered in
612 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
second bail application, therefore, there
is no fresh and good ground after
rejecting his first bail application. In
such a circumstances, the contention
made by the learned counsel for the
applicant has no force and his second
bail application is also not liable to be
allowed.

(Delivered by Hon'ble Shiv Shanker, J.)

1. This is second bail application
moved on behalf of applicant Kamlesh
Kumar son of Chhangoo Lal in Case
Crime No. 07 of 2006 under Sections
498A, 304B I.P.C. and 3/4 D.P. Act, P.S.
Palari, District Chitrakoot. His first bail
application has already been rejected by
this Bench vide order dated July 6, 2007
in Crl. Misc. Bail Application No. 26689
of 2006 on merit of the case.

2. Heard learned counsel appearing
on behalf of the applicant and learned
A.G.A.

3. It is contended by learned counsel
for the applicant that in the earlier filed
bail application, much discussion has
occurred on the issue that the door of the
room, where the deceased was found, was
locked from outside or inside. As soon as
this incident occurred, the matter reported
to the police of P.S. Pahari, District
Chitrakoot by the applicant side. A true
copy of G.D. entry No. 20 dated
31.01.2006 of P.S.. Pahari, District
Chitrakoot is on record as Annexure-2.
On receiving the information, S.O., Sri
K.D. Singh reached at the place of
incident and completed the inquest
proceeding of the deceased Smt. Chandra
Kiran. After completion of the inquest
proceeding, he went off and prior to
leaving the place of incident, he locked
the room from outside. In this regard, a
true copy of the G.D. entry dated
01.02.2006 of P .S. Pahari, District
Chitrakoot is on record as Annexure-3.

4. It is further contended when 5.0.,
Sri K.O. Singh left the place, then this
place of incident was again visited by
C.O., who made local inspection of the
area, prepared site plan after opening the
room and handed over the keys to land
lord. A true copy of G.O. entry No. 25
dated 02.02.2006 is also on record as
Annexure -4. Therefore, it is crystal clear
that when the C.O. reached at the place of
incident for preparing site plan, he found
the room locked outside, which was
locked by S.O., Sri D.K. Singh himself
and none else outside of the room.
Therefore, theory of locking door of room
of deceased, where the deceased was
burning from outside at the time when
incident occurred, is false. The lock found
by C.O. was actually place there by the
S.O. and not by the applicant or any inlaws. It is further contended that the
applicant could not get copies of these
general diary entries at the time of hearing
of first bail application, hence, he could
not present the same here before this
Court at the time of consideration of first
bail
application
of
the
applicant.
Therefore, no case of dowry death is
made out and applicant's bail application
is liable to be allowed.

5. A.G.A. has urged that there is no
fresh
ground
in
the
second
bail
application and it is also liable to be
rejected.

6. In dowry death, homicide and
suicide, both come within the category of
unnatural death. In such circumstances,
there will be no effect either the deceased
committed suicide by locking the door
2 All] Ram Sagar Patel V. State of U.P. and others
613
inside or was murdered by the accused by
burn injuries. The applicant is the
husband of the deceased. She has died
within seven years of her marriage as
unnatural death by burn injury at the
house of her husband. She was subjected
to cruelty due to non-fulfilment of
demand of dowry. Later on, she died due
to burn injuries, which is unnatural death.
The first bail application of the present
applicant has already been rejected by this
Court by passing the detailed order. After
rejecting the first bail application of the
present applicant, there is no fresh and
good
ground
in
the
second
bail
application.

7. It is worthwhile to mention here
that when the first bail application has
already been rejected by the Court and
any ground, which was existed in the first
bail application, the same ground cannot
be taken in another bail application.
Meaning thereby, all the grounds are
existed before moving the first bail
application of the accused, however, if
some grounds were taken and some
grounds were not taken in the first bail
application, the grounds, which were not
taken in the earlier bail application cannot
be taken into consideration by filing the
second bail application after rejecting his
first bail application. After rejecting the
firs bail application, the new and fresh
grounds can only be considered and such
bail may be granted. The rejection order
passed in the first bail application reveals
that the question of locking the door from
outside or inside has already been
considered.
The
general
diary,
as
contended by learned counsel for the
applicant, was already in existence at the
time of moving the first bail application
even
then
this
ground
cannot
be
considered in second bail application,
therefore, there is no fresh and good
ground after rejecting his first bail
application. In such a circumstances, the
contention made by the learned counsel
for the applicant has no force and his
second bail application is also not liable
to be allowed.

8. Consequently, this second bail
application of the present applicant is also
hereby rejected.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.05.2008

BEFORE
THE HON'BLE VINOD PRASAD, J.
THE HON'BLE SURENDRA SINGH, J.

Crl. Misc. Writ Petition 7256 of 2008

Ram Sagar Patel

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Raj Kumar

Counsel for the Respondents:
A.G.A.

Constitution
of
India-Article-226-writ
jurisdiction-writ of Mandamus seeking
direction to Police authorities to follow
the provision of Para 486(I) and (III) of
Police regulation-to lodge FIR-petitioner
has remedy either to move application
u/s 156(3) of Cr.P.C. Or to lodge
complaint-extraordinary power cannot
be exercised.

Held: Para 8

After hearing the petitioner's counsel in
support of this petition and the learned
AGA, we are of the considered opinion
that prayer made in this writ petition is
wholly misconceived and the petitioner