# Nipendra Singh (In Jail) v. State of U.P

- **Citation:** (2007) 1 ILRA 94
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-09-26
- **Case number:** Criminal Misc. (IInd) Bail Application No. 9509 of 2006
- **Bench:** K.N. Ojha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nipendra-singh-in-jail-v-state-of-u-p-40890
- **Pages:** 4

## Headnote

Code of Criminal Procedure-Section 439Second
Bail
Application-the
ground
which
are
taken
in
second
bail
application-available
at
the
time
of
disposal of first bail application-can not
be termed as new ground.

Held: Para 10

The ground, which has been taken in
Second Bail Application, was available to
the applicant at the time of disposal of
the First Bail Application. The ground
available at the time of disposal of First
Bail Application will not be taken to be a
new
fact
for
moving
Second
Bail
Application. The Second Bail Application
is maintainable on new developments or
new facts and not on new ground based
on the facts, which already existed at the
time of disposal of First Bail Application.
Case law discussed:
1999 Cr.L.J. 3709
AIR 1992 SC-2292
1 All] Nipendra Singh V. State of U.P.
95

## Text

94 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
not be kept in a temporary or ad hoc
status for long. Where a temporary or ad
hoc appointment is continued for long the
Court presumes that there is need and
warrant for a regular post and accordingly
directs regularisation."

12. In view of the aforesaid, it is
clear that the petitioners are working
continuously from the date of their initial
appointments as trainees. The action of
the
respondents
in
permitting
the
petitioners to work for considerable
length of time gave them a flicker of hope
for being absorbed in the services of the
respondents. Clause 12 of the terms and
conditions of the offer of appointment
indicates that the management has a
policy for the absorption of trainees in the
regular cadre.

13. In view of the aforesaid, the
petitioners are entitled to claim for their
absorption
in
the
service
of
the
respondents.
Consequently,
the
writ
petition is allowed. A mandamus is issued
to the respondents to consider the case of
the petitioners for their absorption in the
regular cadre within three months from
the date of the production of a certified
copy of this order.

In the event, the respondents deny
the absorption on the basis that there is no
vacancy, in that event, the petitioners
would be allowed to continue on a
minimum scale of pay till such time, as
the requisite posts are created in the
regular cadre. In the circumstances, of the
case, the parties shall bear their own cost.
Petition Allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.09.2006

BEFORE
THE HON'BLE K.N. OJHA, J.

Criminal Misc. (IInd) Bail Application No.
9509 of 2006

Nipendra Singh
...Applicant (In Jail)
Versus
State of U.P.

...Opposite Party

Counsel for the Applicant:
Sri Dilip Kumar
Sri Arun K. Singh
Sri Rajiv Gupta

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

Code of Criminal Procedure-Section 439Second
Bail
Application-the
ground
which
are
taken
in
second
bail
application-available
at
the
time
of
disposal of first bail application-can not
be termed as new ground.

Held: Para 10

The ground, which has been taken in
Second Bail Application, was available to
the applicant at the time of disposal of
the First Bail Application. The ground
available at the time of disposal of First
Bail Application will not be taken to be a
new
fact
for
moving
Second
Bail
Application. The Second Bail Application
is maintainable on new developments or
new facts and not on new ground based
on the facts, which already existed at the
time of disposal of First Bail Application.
Case law discussed:
1999 Cr.L.J. 3709
AIR 1992 SC-2292
1 All] Nipendra Singh V. State of U.P.
95
(Delivered by Hon'ble K.N. Oiha, J.)

1. This is second bail application
moved by Nipendra in Case Crime
No.1400/2005 under section 302 IPC,
Police Station Haldaur, district Bijnor.

2. The first bail application was
rejected by this Court in Criminal Misc.
Bail Application No. 3603 of2006 on
2.3.2006.

3. Heard Sri Arun Kumar Singh
learned counsel for the applicant, learned
AGA and have gone through the record.

4. According to prosecution Kulbeer
Singh lodged FIR against applicant and
one Vikram Singh under section 302 IPC
on 12.11.2005 at 8.30 p.m. in respect of
the occurrence which is said to have taken
place on the same day about 5.15. p.m. It
is said that Kulbeer Singh had gone from
his village Jalalpur to market Heemapur
alongwith Piyush Kumar and Vimal
Kumar. After purchasing articles they
were going back. He started to talk with
his son Akshey Kumar, when Vikram
Singh and Nipendra Singh came there and
on exhortation of Vikram Singh, Nipendra
Singh with country made pistol fired on
Virnal Kumar. Both the accused fired and
left the place. Vimal Kumar was carried
to District Hospital, Bijnor where he was
declared dead. One gunshot wound was
found on chest of Vimal Kumar aged
about
25
years
alongwith
it's
corresponding wound on right of chest.
One abrasion was also found on the body
of Vi mal Kumar.

5. In the First Bail Application it
was argued by learned counsel for the
applicant that there was no motive to
commit murder, no blood was found on
the spot. There was no evidence that they
were coming back from market and there
is
no
independent
witness
of
the
occurrence. It was also argued that pellet
crossed the chest but no blood was found
on the ground. After considering these
arguments speaking order was passed and
bail application was rejected.

6. By moving instant second Bail
Application it has been submitted by
learned counsel for the applicant that
there was no motive to the applicant to
commit murder of Vimal Kumar. No
article which was purchased from market
and which was being carried by the victim
and the witness was found on the spot. It
is also submitted that according to
prosecution fire was made from country
made pistol of 12 bore but single bullet
crossed the body resulting into the death
of Vimal Kumar, it means the applicant
had not fired on the victim.

7. Learned AGA submits that the
point of motive was discussed in the First
Bail Application also, Devendra brother
of applicant was murdered and applicant
suspected involvement of Vimal Kumar
in such murder. If some persons were
coming after making purchase from the
local market and murder was committed
those purchased articles were neither
exhibits nor evidence of the case.
Therefore,
if
the
witnesses
went
alongwith those purchased articles and
Investigating
Officer
did
not
take
vegetable and other articles in custody it
does not show any weakness in the
prosecution evidence.

8. Occurrence is said to have taken
place on 12.11.05 and 12-bore country
made pistol is said to have been recovered
from the possession of the applicant on
96 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
17.11.05. Besides it cartridge of 12 bore is
said to have been found on the spot. FIR
shows that while running away from the
place
Vikram
Singh
and
applicant
Nipendra both had fired. In FIR it is not
written that country made pistol with
which the applicant had fired was of 12
bore or 3.15 bore. In recovery memo copy
of which has been filed by learned
counsel for the applicant it is not written
that the applicant had confessed that this
recovered country made pistol was used
in murder. The recovery memo speaks
that it was recovered from the possession
of the applicant.

9. While hearing argument this
Court made observation that summoning
of the record will specify as to whether
this country made pistol was used in
commission of the crime or not and the
statement of prosecution witnesses which
has been recorded uptil now and report of
Ballistic Expert, if any, may be of some
help. But learned counsel for the applicant
has submitted that summoning of the
record will delay final disposal of the
trial, hence it be not summoned.

10. The ground, which has been
taken in Second Bail Application, was
available to the applicant at the time of
disposal of the First Bail Application. The
ground available at the time of disposal of
First Bail Application will not be taken to
be a new fact for moving Second Bail
Application. The Second Bail Application
is maintainable on new developments or
new facts and not on new ground based
on the facts, which already existed at the
time of disposal of First Bail Application.

11. The position of law has been
made clear in 1999 (Crl.LJ.)- 3709
Satyapal v. State of U.P. wherein this
Division bench has specified the law that
fresh
argument
in
Second
Bail
Application on same facts, which were
available in earlier bail application,
cannot be allowed. In AIR 1979 SC 2292
State of Maharashtra v. Captain
Buddhikota Subha Rao it has been laid
down by Hon'ble Apex Court that:

"The
personal
liberty
of
an
individual can be curbed by procedure
established by law. The Code of Criminal
Procedure, 1973, is one such procedural
law. That law permits curtailment of
liberty of anti-social and antinational
elements. Art. 22 casts certain obligations
on the authorities in the event of arrest of
an individual accused of the commission
of a crime against society or the nation.
In cases of under-trials charged with the
commission of an offence or offences the
court is generally called upon to decide
whether to release him on bail or to
commit him to jail. This decision has to be
made, mainly in non-bailable cases,
having regard to the nature of the crime,
the circumstances in which it was
committed,
the
background
of
the
accused, the possilbity of his jumping
bail, the impact that his release may make
on the prosecution witnesses, its impact
on
society
and
the
possibility
of
retribution etc.
In the instant case the successive bail
applications preferred by the accused
were rejected by the High court on merits
having regard to the gravity of the offence
alleged to have been committed under
Official Secrets Act 1923, and Atomic
Energy Act 1962. Undeterred the accused
went
on
preferring
successive
applications for bail. All such pending
bail applications were rejected by the
single Judge of the High Court by a
common order. However he was not
1 All] Ajai Singh @ Kallu and others V. State of U.P.
97
aware of the pendency of yet another bail
application
filed
by
the
accused.
Immediately two days thereafter the
accused moved another single Judge of
the High Court, who directed that the
accused be enlarged on bail for a period
of two months on his furnishing security
in the sum of Rs.10,000/= with one surety
on certain terms and conditions. Between
the two orders there was a gap of only
two days and it was nobody's case that
during those two days drastic changes
had taken place necessitating the release
of the accused on bail.
Held, the order granting bail was not
proper and liable to be set aside. Judicial
discipline,
propriety
and
comity
demanded that the order granting bail
should not have been passed reversing all
earlier orders including the one rendered
by the single Judge of the same High
Court only a couple of days before, in the
absence of any substantial change in the
fact situation. In such cases it is necessary
to act with restraint and circumspection
so that the process of the Court is not
abused by a litigant and an impression
does not gain ground that the litigant has
either successfully avoided one Judge or
selected another to secure an order,
which had hitherto eluded him. In such a
situation the proper course, is to direct
that the matter be placed before the same
Judge who disposed of the earlier
applications.
Such
a
practice
or
convention would prevent abuse of the
process of court inasmuch as it will
prevent an impression being created that
a litigant is avoiding or selecting a court
to secure an order to his liking. Such a
practice would also discourage the filing
of successive bail applications without
change of circumstances, such a practice
if adopted would be conducive to judicial
discipline and would also save the
Court's time as a Judge familiar with the
facts would be able to dispose of the
subsequent application. It will also result
in consistency."

12. In view of the above position of
law and the circumstances of the case this
is not a fit case in which Second Bail
Application moved by Nipendra be
allowed.

13. It is a broad daylight occurrence.
FIR was promptly lodged and applicant
was named in the FIR. He is the main
accused of the crime in murder of Vimal
Kumar. Therefore, the Court does not find
it appropriate to enlarge applicant on bail.
The Second Bail Application for bail is
rejected.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.08.2006

BEFORE
THE HON'BLE SHIV SHANKER, J.

Criminal Revision Defective No.500 of
2006

Ajay Singh @ Kallu & others ...Revisionists
Versus
State of U.P.

...Opposite Party

Counsel for the Revisionists:
Sri Indra Lal Yadav
Sri Prem Prakash

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

Code
of
Criminal
Procedure-S.319summoning order accused-not named in
F.I.R. during trial-after recording the
statements of P.W. I-regarding injury
caused
by
the
applicant
by
Axesupported by medical report prima-facie
case
made
out-objection
that
the