# Mahaveer v. State of U.P

- **Citation:** (2020) 8 ILRA 591
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-07
- **Case number:** Criminal Appeal No. 4426 of 2016
- **Bench:** Suneet Kumar, Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahaveer-v-state-of-u-p-46064
- **Pages:** 4

## Headnote

Criminal law - Code of Criminal Procedure,
1973-
Section
389(1)-
Second
bail
application -The first bail application was
rejected by this Court on merits-Short
Term Bail Application seeking release on
short term bail on medical grounds, was
also rejected on merits - Settled law that
it is not open to the aggrieved person to
make successive bail applications even on
a ground already rejected by the Courts
earlier - No material change in the fact
situation in this second bail application.
The ground taken is already covered by
previous order - The age of the applicant
is no ground to release him on bail.

It is not open for the accused to adopt the
same grounds in the Second bail application
which have been adopted earlier and rejected
by the Court. The medical grounds taken in
the second bail application, having already
been taken in the Short term bail application
and rejected by the Court, cannot be pressed
again. (E-3)

## Text

8 All. Mahaveer Vs. State of U.P.
591

51. It is given to understand that the
appellant
no.1
Ramjan
Shah
is
languishing in jail since very date of
inception i.e. on 26.05.2009 whereas rest
of the accused Km. Shabbo and Mrs.
Rashida Begam are facing incarceration
from date of judgment i.e. 06.06.2013.
Since both of them are in jail for almost
11 years(appellant no.1) and 7 years
(appellant nos. 2 and 3) respectively.
They are released forthwith, the appeal is
partly allowed in the aforesaid terms. The
fine amount would be deposited within a
month after their release.

52.

The
instant
appeal
is,
accordingly, allowed in part.
----------
(2020)08ILR A591
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.07.2020

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE RAVI NATH TILHARI, J.

Criminal Appeal No. 4426 of 2016

Mahaveer ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri
Indra
Kumar
Chaturvedi,
Sri
Swetashwa Agarwal, Sri Abhishek Triathi,
Sri Anshu Singh, Sri Hemandra Pratap
Singh, Sri Thakur Azad Singh.

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

Criminal law - Code of Criminal Procedure,
1973-
Section
389(1)-
Second
bail
application -The first bail application was
rejected by this Court on merits-Short
Term Bail Application seeking release on
short term bail on medical grounds, was
also rejected on merits - Settled law that
it is not open to the aggrieved person to
make successive bail applications even on
a ground already rejected by the Courts
earlier - No material change in the fact
situation in this second bail application.
The ground taken is already covered by
previous order - The age of the applicant
is no ground to release him on bail.

It is not open for the accused to adopt the
same grounds in the Second bail application
which have been adopted earlier and rejected
by the Court. The medical grounds taken in
the second bail application, having already
been taken in the Short term bail application
and rejected by the Court, cannot be pressed
again. (E-3)

(Delivered by Hon'ble Ravi Nath Tilhari, J.)

1.

Heard
Sri
Indra
Kumar
Chaturvedi, learned Senior Advocate
assisted by Sri Thakur Azad Singh,
learned
counsel
for
the
appellant/applicant and learned A.G.A.
for the State.

2. This is the second bail
application by the appellant/applicant
Mahaveer,
who
is
convicted
and
sentenced in ST No. 368 of 2007, arising
out of Case Crime No. 1247 of 2006,
under Sections 396, 120B, 412 IPC,
Police Station Naugawan Sadat, District
J.P. Nagar.

3. The first bail application being
Criminal Misc. Bail Application No.
3280 of 2016 was rejected by this Court
on merits by order dated 14.9.2016.
Thereafter the applicant filed Criminal
Misc. Short Term Bail Application No. 4
of 2018 seeking release on short term
bail on medical grounds, which was also
rejected on merits by this Court by order
dated 5.3.2019.
592 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Learned counsel for the applicant
submits that the present second bail
application is being filed on the ground
of serious ailment of the applicant who is
languishing in jail since 3.11.2015 after
conviction. The applicant is having a
very weak physic and suffered massive
attack (paralyze) in jail and was taken to
Sardar Vallabh Bhai Patel Hospital,
Meerut, where he was treated on
17.4.2018. Thereafter, the applicant's
condition became worse and he was
again admitted in the same Hospital on
6.6.2018, after being medically examined
by the Medical Board. On 12.6.2018, the
applicant was referred to Government
Authorized Higher Centre (AIM) G.B.
Panth Hospital, New Delhi, and was
admitted at Dr. Ram Manohar Lohiya
Hospital, New Delhi on 12.6.2018. He
was discharged on 13.6.2018 but was
again admitted at Pt. Deen Dayal
Upadhyaya Combined (Male) Hospital,
Moradabad on 15.7.2019 where the
applicant remained upto 22.7.2019 and
was further referred to higher centre
Sardar Vallabh Bhai Patel Associated
with
LLRN
Medical,
Meerut
on
27.7.2019. Since then, the applicant is
continuously admitted in the hospital and
is under medical treatment. The applicant
is aged about 70 years and in the
circumstance of the case, he is entitled
for grant of bail on the medical ground of
ailment.

5. Per contra, learned A.G.A.
submits that so far as the ground of
applicant's ailment is concerned, on such
consideration, i.e. physical condition and
the treatment, looking to the documents
annexed by the applicant along with the
short
term
bail
application
upto
13.6.2018, the applicant's short term bail
application was rejected by this Court by
order dated 5.3.2019. He submits that on
the same facts and ground, as in the short
term bail application the second bail
application cannot be considered and the
applicant is not entitled for bail. Learned
A.G.A. submits that from the averments
in the affidavit in support of second bail
application it is evident that the jail
authorities are taking better care of the
applicant's health and are providing best
available treatment to him in different
hospitals. He submits that considering the
nature of the offence, nature of injuries
and the finding recorded by the trial court
the applicant's first bail application was
rejected. There is no fresh ground for
grant of bail and on the ground of ailment
the short term bail was rejected.

6. We have considered the
submissions advanced by the learned
counsel for the parties and perused the
material
on
record
including
supplementary affidavit of the applicant.

7. In Kalyan Chandra Sarkar Vs.
Rajesh Ranjan alias Pappu Yadav and
another (2005) 2 SCC 42, the Hon'ble
Supreme Court has held that it is not
open to the aggrieved person to make
successive bail applications even on a
ground already rejected by the Courts
earlier. It has also been held that 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 court must
give due weight to the grounds which
weighed with the former or higher court
in rejecting the bail application. We
consider it appropriate to reproduce
paragraphs 18 to 20 of the aforesaid
judgment as under:
8 All. Mahaveer Vs. State of U.P.
593

"18. 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.

19. The principles of res
judicata and such analogous principles
although are not applicable in a criminal
proceeding, 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 canvassed earlier would
not be permitted to be reagitated 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.

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."

8. The first bail application of the
applicant was rejected by this Court, after
594 INDIAN LAW REPORTS ALLAHABAD SERIES
going through the entire merits of the
case. This Court by order dated 14.9.2016
took cognizance of the relevant facts and
noting that more than a dozen gun shot
entry wounds were found on the body of
the deceased in indiscriminate firing in
which incident the applicant was armed
with fire arm and there was a background
of enmity and there were attempts to
commit murder in question made earlier.
Considering the motive, occular version
and the ante mortem injuries received by
the deceased, the applicant was refused
bail.

9. The applicant's short term bail
application was also rejected by order
dated 5.3.2019, observing that whatever
ailment with which the appellant was
suffering was already being taken care of
medically and the fact that the applicant
was being treated at different hospitals as
per the need was not disputed.

10. We do not find any material
change in the fact situation in this second
bail application. The ground taken is
already covered by order dated 5.3.2019.
The only thing is that the future physical
condition of the applicant w.e.f. 15.7.2019
has further been mentioned, but without
disputing that the jail authorities are taking
due care medically and are providing
treatment in different hospitals.

11. We are further of the view that
considering over all facts of the case, the
age of the applicant is no ground to
release him on bail.

12. Thus considered we are not
inclined to grant bail to the applicant.
The second bail application of the
applicant Mahaveer is hereby rejected.
----------
(2020)08ILR A594
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.05.2020

BEFORE

THE HON'BLE NAHEED ARA MOONIS, J.
THE HON'BLE RAJ BEER SINGH, J.

Criminal Appeal No. 4658 of 2015

Veerpal & Anr. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Umesh Chandra Yadav, Sri Awadh
Sharma, Sri Rajesh Pathik, Sri Rohan
Gupta, Sri Shree Prakash Giri

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

Evidence Act-Indian Evidence Act, 1872-
Section 32- Two dying declarations
were
recorded.
The
first
dying
declaration
of
the
deceased
was
recorded on 20.12.2011 by PW-8 , the
first investigating officer of the case in
the form of statement under Section
161
Cr.P.C.
at
Lakshmi
Life
Line
Hospital, Vrindavan, district Mathura
and the second dying declaration of the
deceased was recorded by PW-4 , the
then Additional City Magistrate at 4.20
PM on 22.12.2011 at Ishwar Devi
Nurshing Home, Rajpur Chungi, Agra,
i.e. two days after the recording of first
dying declaration. In the first dying
declaration the deceased stated that out
of the fear of her father-in-law, she
committed suicide and the role assigned
to the appellant No. 1 in her dying
declaration was only of chasing her for
beating and not for burning.When the
second
dying
declaration
of
the
deceased was recorded by PW-4, she
has taken a complete somersault and
has assigned general role to father-inlaw, mother-in-law and Devar to have