# Khursheed and another (In Jail) v. State of U.P

- **Citation:** (2009) 2 ILRA 422
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-06-29
- **Bench:** Vijay Kumar Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/khursheed-and-another-in-jail-v-state-of-u-p-41522
- **Pages:** 6

## Headnote

Code of Criminal Procedure Section 439Second Bail Application-Maintainabilityomission
of
the
facts
and
ground
available at the time of First Bail
Application-Second Bail Application not
maintainable except on having some
additional new grounds-in Second Bail
Application except period of jail no other
facts pleaded-held-not maintainable.

Held: Para 12

Having
given
my
thoughtful
consideration to the submissions made
by the learned AGA, I entirely agree with
his
contention
that
second
bail
application moved on behalf of the
applicants is not legally maintainable, as
no fresh ground has been shown in the
2nd bail application or at the time of
arguments. I have already mentioned
herein-above the submissions made by
the learned counsel for the applicants.
Except the ground of period of detention
in jail, all other grounds, as mentioned
above, were available to the applicantsaccused at the time of disposal of the
first bail application. Therefore, in view
of the law laid down by the Division
Bench of this Court in Satya Pal Vs. State
of U.P. (supra) and keeping in view the
observations made by Hon'ble Apex
Court in Kalyan Chand Sarkar Vs. Rajesh
Ranjan @ Pappu Yadav (Supra), in my
opinion, second bail application on those
very
facts
and
grounds
that
were
available to the applicants when the first
bail application was moved and rejected,
cannot be allowed to be advanced.
Case law discussed:
1998(37) ACC 287, 1989(26) ACC 503(SC),
1978 Cr. L. J. 651 (SC), 1987(24) ACC
425(SC), 2005(51) ACC 727 (SC), 2008 (63)
ACC 115.

## Text

422 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.06.2009

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Misc. Bail Application 1199 of
2009

Khursheed and another ...Applicants
(In Jail)
 Versus
State of U.P.

...Opposite party

Counsel for the Applicants:
Sri Pankaj Sharma
Sri Rajul Bhargava
Sri S.K. Dwivedi

Counsel for the Opposite Party:
A.G.A.

Code of Criminal Procedure Section 439Second Bail Application-Maintainabilityomission
of
the
facts
and
ground
available at the time of First Bail
Application-Second Bail Application not
maintainable except on having some
additional new grounds-in Second Bail
Application except period of jail no other
facts pleaded-held-not maintainable.

Held: Para 12

Having
given
my
thoughtful
consideration to the submissions made
by the learned AGA, I entirely agree with
his
contention
that
second
bail
application moved on behalf of the
applicants is not legally maintainable, as
no fresh ground has been shown in the
2nd bail application or at the time of
arguments. I have already mentioned
herein-above the submissions made by
the learned counsel for the applicants.
Except the ground of period of detention
in jail, all other grounds, as mentioned
above, were available to the applicantsaccused at the time of disposal of the
first bail application. Therefore, in view
of the law laid down by the Division
Bench of this Court in Satya Pal Vs. State
of U.P. (supra) and keeping in view the
observations made by Hon'ble Apex
Court in Kalyan Chand Sarkar Vs. Rajesh
Ranjan @ Pappu Yadav (Supra), in my
opinion, second bail application on those
very
facts
and
grounds
that
were
available to the applicants when the first
bail application was moved and rejected,
cannot be allowed to be advanced.
Case law discussed:
1998(37) ACC 287, 1989(26) ACC 503(SC),
1978 Cr. L. J. 651 (SC), 1987(24) ACC
425(SC), 2005(51) ACC 727 (SC), 2008 (63)
ACC 115.

(Delivered by Hon'ble Vijay Kumar Verma, J.)

"Whether the second bail application
on the grounds, which were available at
the time of dismissal of first bail
application is maintainable?", is the main
point that falls for consideration in this
case, in which second bail has been
moved on behalf of the applicants named
above in case crime no. 670 of 2008
under section 419, 420, 467, 468 IPC of
P.S. Govardhan, District Mathura.

2. The first bail application bearing
no. 30292 of 2008 was rejected on merit
by another Bench of this Court vide order
dated 11.11.2008.

3. Shorn of unnecessary details, the
case of the prosecution, as appearing from
the first information report lodged on
19.09.2008 by the complainant Gurwant
Sharma s/o Bharu Lal, resident of Village
Bhadbhadia,
Tehsil
and
District
Neemamb (Madhya Pradesh), is that the
accused Pappu @ Khursheed (applicant
no. 1 herein) and Zakir s/o Shamshuddin
defrauded and cheated the complainant on
11.08.2008 and obtained Rs.10,00,000/-
(Rupees ten lac) from him and gave two
2 All] Khursheed and another V. State of U.P.
423
bricks weighing about two kilograms
saying that the bricks are of gold, whereas
on examination, the bricks were found of
brass or some other metal.

4. I have heard Sri Rajul Bhargava
and Sri S. K. Dwivedi, Advocates
appearing for the applicants and AGA for
the State.

5. Before coming to the submissions
made
by
learned
counsel
for
the
applicants and AGA, I would like to
express my views on the legal question,
which I have posed for consideration as
stated herein-above. This question has
been posed for consideration, because
second or subsequent bail applications are
being moved by Hon'ble members of the
Bar on the same ground, which were
available at the time of rejection of the
first bail application. It is generally
argued by Hon'ble members of the Bar
that there is no legal bar to move second
or subsequent bail applications even on
those grounds, which were available at
the time of disposal of first bail
application, if arguments about those
grounds were not advanced at the time of
disposal of first bail application.

6. The matter of maintainability of
second or subsequent bail application on
the grounds, which were available at the
time of rejection of first bail application,
was considered by Division Bench of this
Court in Satya Pal Vs. State of U.P.
1998(37) ACC 287. The following
question was referred by the single Judge
to be decided by larger Bench:-

"Whether a fresh argument in a
second bail application for an 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.

7. Before the learned Single Judge
reliance was placed on the decision of a
learned Single Judge of this Court in the
case of Gama and another v. State of U.P.
1986 (23) ACC 339. The learned Single
Judge in paragraph 5 of his judgement
observed as follows:-

"I am conscious that order on a bail
application need not be detailed one but
as the legal points were argued from both
sides
which
require
a
bit
detail
discussion. After hearing the counsel for
the parties at considerable length, the
first point for determination is as to
whether the arguments advanced by the
learned counsel for the applicants about
the statements of most of the prosecution
witnesses being recorded under section
164 of the Code was considered in the
first
order
disposing
of
the
bail
application or not. Suffice it to say that
the right of bail is statutory right, rather it
is a constitutional right. 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 cannot 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."

8. Having considered the decisions
of Hon'ble Apex Court in State of
Maharashtra Vs. Buddhikota Subha Rao
1989(26) ACC 503(SC), Babu Singh Vs.
State of U.P. 1978 Cr. L. J. 651 (SC) as
well as Shahzad Hasan Khan V. Ishtiaq
Hasan Khan 1987(24) ACC 425(SC), the
Bench consisting of Hon'ble Girdhari
424 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Malvia and Hon'ble K. D. Sahi, J.J. has
held that 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.
The view expressed by the Hon'ble Single
Judge in Gama Vs. State of U.P. (supra),
was over-ruled by the Division Judge.

9. The matter of maintainability of
second and subsequent bail application
was considered by the Hon'ble Apex
Court in Kalyan Chandra Sarkar etc. Vs.
Rajesh Ranjan @ Pappu Yadav and
another 2005(51) ACC 727 (SC). On the
basis of the observations made by the
Hon'ble Apex Court in the decision in this
case, it can very well be stated that second
or subsequent bail application can be
moved on some fresh grounds or change
of circumstances or law. The following
observations made by Hon'ble Apex
Court in para 19 and 20 of the report are
worth mentioning:-

"19. The principles of res judicata
and such analogous principles although
are
not
applicable
in
a
criminal
proceedings, still the Courts are bound by
the doctrine of judicial discipline having
regard
to
the
hierarchical
system
prevailing in our country. 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 convassed earlier would
not be permitted to be re-agitated on the
same grounds, as the same would lead to
a speculation and uncertainty in the
administration of justice and may lead to
forum hunting. (underlining is our).
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."

10. Keeping in view aforecited
observations made by the Hon'ble Apex
Court, I now come to the submissions
made by the learned counsel for the
applicants in support of the second bail
application.
The
following
main
arguments were advanced by the learned
counsel for the applicants:-

(a) That the applicant no. 2 Majsad
is not named in the FIR.
(b) That five more persons were
introduced in the statements under section
161 Cr.P.C., but chargesheet has not been
submitted
against
them.
For
this
2 All] Khursheed and another V. State of U.P.
425
submission, my attention has been drawn
towards the statements of witnesses filed
with
supplementary
affidavit
dated
07.05.2009.
(c) That both the applicants were not
put to identification during investigation
in Test Identification Parade and hence
identity
of
the
applicants
is
not
established. It was submitted in this
context that the applicants are residents of
Uttar Pradesh, whereas the complainant is
resident of Madhya Pradesh and he was
not knowing the applicants since before
the alleged incident. The contention of
learned counsel was that since the
complainant and witnesses were not
knowing the applicants prior to the
alleged incident, hence it was obligatory
for the investigating officer to put the
applicants
to
identification
during
investigation in Test Identification Parade
and since it was not done, hence the
identity of the applicants can not be said
to be established.
(d) That there was delay in lodging
the FIR.
(e)

That
there
are
material
contradictions in the statements of the
witnesses recorded under section 161
Cr.P.C.
(f) That no recovery of any
incriminating article was made from the
applicants.
(g) That in the statements recorded
under
section
161
Cr.P.C.
of
the
complainant, details of mobile calls have
not been given.
(h) That no offence is made out
against the applicants.
(i) That there is no independent
witness of the alleged incident of handing
over bricks by the applicants and payment
of Rs.10,00,000/- by the complainant to
them.
(j) That except the present case,
there is no criminal antecedent of the
applicants.
(k) That the applicants are in jail for
more than eight months and due to delay
in trial their Fundamental Right of speedy
trial envisaged under Article 21 of the
Constitution is being infringed.

11. AGA on the other hand
contended
that
after
thorough
investigation,
chargesheet
has
been
submitted against the applicants and since
all the grounds, which have been
mentioned by the learned counsel for the
applicants
in
their
arguments
were
available at the time of disposal of first
bail application, hence on those very
grounds, the second bail application is not
maintainable.

12. Having given my thoughtful
consideration to the submissions made by
the learned AGA, I entirely agree with his
contention that second bail application
moved on behalf of the applicants is not
legally maintainable, as no fresh ground
has been shown in the 2nd bail
application or at the time of arguments. I
have already mentioned herein-above the
submissions made by the learned counsel
for the applicants. Except the ground of
period of detention in jail, all other
grounds, as mentioned above, were
available to the applicants-accused at the
time of disposal of the first bail
application. Therefore, in view of the law
laid down by the Division Bench of this
Court in Satya Pal Vs. State of U.P.
(supra)
and
keeping
in
view
the
observations made by Hon'ble Apex
Court in Kalyan Chand Sarkar Vs.
Rajesh Ranjan @ Pappu Yadav (Supra),
in my opinion, second bail application on
those very facts and grounds that were
426 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
available to the applicants when the first
bail application was moved and rejected,
cannot be allowed to be advanced. After
passing order dated 11.11.2008 on the
first bail application no. 30292 of 2008 by
another Bench of this Court, the law on
any point has not been changed. Merely
because some other persons, whose
complicity
came
to
light
during
investigation, have been exonerated by
the investigating officer, no benefit can be
extended to the applicants. The matter of
identification was considered by another
Bench of this Court in the order dated
11.11.2008 passed in first bail application.
Moreover, the matter of identification will
be
considered
by
the
trial
court.
Therefore, as held by the Hon'ble Apex
Court in Kalyan Chand Sarkar Vs.
Rakesh Ranjan @ Pappu Yadav (supra),
the grounds which have been mentioned
by the learned counsel for the applicants
at the time of arguments and which are
mentioned above, can not be permitted to
be restated as the same would lead to
speculation
and
uncertainty
in
the
administration of justice and may lead to
forum hunting. Although, as held by
Hon'ble Apex Court in Kalyan Chandra
case (supra), there is room for filing of
subsequent bail application in cases where
earlier applications have been rejected,
but the same can be done if there is
change in the fact situation or in law,
which
requires
earlier
view
being
interfered with or where the earlier
finding has become obsolete. Therefore, I
am not in agreement with the argument of
Sri Rajul Bhargava, learned counsel for
the applicants that in view of the
guarantee 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.
13. In my considered opinion, on the
basis of the long incarceration in jail also,
the applicant can not be admitted to bail
in this heinous crime. In this context,
reference may be made to the case of
Pramod Kumar Saxena vs. Union of
India and others 2008 (63) ACC 115, in
which the Hon'ble Apex Court has held
that mere long period of incarceration in
jail would not be per-se illegal. If the
accused has committed offence, he has to
remain behind bars. Such detention in jail
even as an under trial prisoner would not
be violative of Article 21 of the
Constitution.

14. For the reasons mentioned
herein-above, the second bail application
of the applicants Khursheed and Majsad is
hereby rejected.

15. The trial court is directed to
conclude the trial of the applicants within
a period of six months applying the
provisions of section 309 Cr.P.C. and
avoiding unnecessary adjournments.

16. The S.S.P. Mathura is also
directed to depute special messenger to
procure the attendance of the witnesses
after obtaining their summons from the
trial court concerned and it must be
ensured that the witnesses are produced in
the trial court for evidence without
causing any delay.

17. The office is directed to send a
copy of this order within a week to the
trial court concerned and S.S.P. Mathura
for necessary action.
---------
2 All] Nanhe @ Indra Kumar V. State of U.P. and others
427
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.05.2009

BEFORE
THE HON'BLE AMAR SARAN, J.
THE HON'BLE SHRI KANT TRIPATHI, J

Criminal Misc. Writ Petition No. 6710 of
2009

Nanhe @ Indra Kumar
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri P.C. Mishra

Counsel for the Opposite Party:
A.G.A.

Constitution of India Article 226- Writ
jurisdiction-alternative Remedy-order of
externment passed under section 3 of
U.P.
Control
of
Gunda
Act,
1970appealable under section 6 of the Act-the
commissioner has ample power to set
aside or grant stay order-challenged on
the ground the petitioner is not resident
of the territorial limit of the District in
question-held-no
avail
District
Magistrate
within
its
territorial
competence of to direct any concern
Gunda to desist from entering the said
area or contiguous district or part
thereof-where
statutory
remedy
available -writ petition not maintainable.

Held: Para 14:

Section 3 of the Act, as extracted above,
empowers the District Magistrate to
direct the concerned Goonda to remove
himself not only outside the area within
the limits of his local jurisdiction but also
from any area and any contiguous
district or districts or any part thereof.
Such removal may be directed to be
made by such route, if any, and within
such time as may be specified in the
order. It is also within the competence of
the District Magistrate to direct the
concerned
Goonda
to
desist
from
entering
the
said
area
or
such
contiguous district or districts or part
thereof until expiry of such period not
exceeding
six
months
as
may
be
specified in the order. The District
Magistrate has also power to impose
other conditions specified in sub-clauses
(I),(ii) and (iii) of clause (b) of subsection (3) in the externment order
besides
mentioning
the
aforesaid
conditions specified in clause (a) of subsection (3) of section 3 of the Act.
Neither
section
3
nor
any
other
provisions of the Act provides that the
person against whom externment order
is passed must be a resident of the
district. If it appears to the District
Magistrate that any person whether he is
a resident of the district or not is
involved in the activities referred to in
clause (b) and (c) of sub-section (1) of
section 3 of the Act in the district and is
a 'Goonda' within the meaning of section
2(b) of the Act, he may pass the
externment order of that person after
making due compliance of the provisions
of sub-section (1) and sub-section (2) of
section 3 of the Act. There is nothing to
stop a person, who is a permanent
resident of a particular district, to move
and
indulge
in
various
activities
including the activities referred to in
section 3(1) of the Act in other districts.
In that situation the District Magistrate
in whose district such activities are being
carried out, has jurisdiction to pass an
externment order under section 3(3) of
the Act against such person. In out view,
the submissions of the learned counsel
for the petitioner that the District
Magistrate, Etah and no jurisdiction on
account of the fact that petitioner was
not a resident of district Etah has no
substance.
Case law discussed:
AIR 1999 SC 22, (2005) 6 Supreme Court
Cases 499, (2003)2 SCC 107, (2004) 4
Supreme Court Cases 268, (2006) 5 S.C.C.
469, (2000) 1 UPLBEC 702.