# Rajkaran Patel v. State of U.P

- **Citation:** (2023) 5 ILRA 1826
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-17
- **Case number:** Crl. Misc. II Bail Application No. 53377 of 2022
- **Bench:** Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajkaran-patel-v-state-of-u-p-50272
- **Pages:** 12

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Section 439 - second bail application-
Indian Penal Code, 1860 - Sections 366,
376, 354-A, 328, 323, 504 & 506 - second
bail application of accused is not barred and
is maintainable- second bail application is
always
considered-on
fresh
grounds
available to the accused after rejection of
bail application- fresh argument in second
bail application not allowed-if available at
the time of moving and rejection of first bail
application- no fresh and new ground
available
in
the
present
second
bail
application-
substantial
change
in
the
circumstance so far as merit of the case is
concerned- Bail application rejected. (Paras
13, 16, 17, 19 and 24)
HELD: Although a second bail application on
behalf of the accused is not barred and is
maintainable but considerations of the grounds
of bail are the factors to be taken into account
in it. A second bail application is always
considered on fresh and new grounds available
to the accused after rejection of the first bail
application. It cannot be said that a second bail
application would not be maintainable. The
maintainability of such bail application is there
but consideration of the prayer for bail is subject
to the availability of fresh and new grounds
which if not available would render reviewing
the earlier order rejecting the bail application. In
the case of Babu Singh (supra), the Court was
considering a bail application of an accused who
was acquitted by the Sessions Court against
which the St.had filed an appeal against
acquittal in the High Court which was successful
and the findings of the Sessions Judge were
reversed holding the accused persons guilty and
sentencing them for the offences. Against the
said judgment and order of the High Court, a
statutory appeal was carried to the Apex Court.
Before the Apex Court, a second bail application
was filed which was the consideration in which
the said judgment and order has been passed.
The
Apex
Court
with
regards
to
the
maintainability of a second bail application held
that an order refusing an application for bail
does not necessarily preclude another, on a later
occasion,
giving
more
materials,
further
developments
and
different
considerations.
(Para 13)

In so far as the part of the maintainability of a
second bail application is concerned, it is no
more res-integra that the same is maintainable.
The question which arises is whether without
any fresh new and changed circumstances, a
Court should consider a subsequent bail
application ignoring its previous order rejecting
the previous bail application or not. (Para 16)

In the opinion of the Court, the same would not
be possible. A subsequent bail application is
maintainable but consideration of the prayer of
bail would depend on the facts as to whether
fresh and new grounds have been pleaded and
are available or not. (Para 17)

Considering the arguments of learned counsels
for the parties, perusing the records and the law
5 All. Rajkaran Patel Vs. State of U.P.
1827
on the issue, there is no fresh and new ground
available in the present second bail application.
This Court does not find any substantial change
in the circumstance so far as merit of the case is
concerned. This Court does not a find it a fit
case for bail. (Para 19)

Bail Application rejected. (E-14)

List of Cases cited:

## Text

_Characters 0–39,848 of 42,802. This is a partial read: ask again with offset=39848 for what follows._

1826 INDIAN LAW REPORTS ALLAHABAD SERIES
expected to conclude the trial of the
applicant expeditiously without granting
any unnecessary adjournment to either of
the parties.

11. Let a copy of this order be sent to
the
victim
through
Child
Welfare
Committee, Ghaziabad as well as to the
Trial Court for information within two
weeks.
----------
(2023) 5 ILRA 1826
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.05.2023

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Crl. Misc. II Bail Application No. 53377 of 2022

Rajkaran Patel ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Sri Ram Autar Verma, Sri Vivek Mishra, Sri
Amarjeet Singh

Counsel for the Respondent:
G.A., Sri Sukhvir Singh, Sri Vinod Kumar Sahu

Criminal Law - Criminal Procedure Code,
1973 - Section 439 - second bail application-
Indian Penal Code, 1860 - Sections 366,
376, 354-A, 328, 323, 504 & 506 - second
bail application of accused is not barred and
is maintainable- second bail application is
always
considered-on
fresh
grounds
available to the accused after rejection of
bail application- fresh argument in second
bail application not allowed-if available at
the time of moving and rejection of first bail
application- no fresh and new ground
available
in
the
present
second
bail
application-
substantial
change
in
the
circumstance so far as merit of the case is
concerned- Bail application rejected. (Paras
13, 16, 17, 19 and 24)
HELD: Although a second bail application on
behalf of the accused is not barred and is
maintainable but considerations of the grounds
of bail are the factors to be taken into account
in it. A second bail application is always
considered on fresh and new grounds available
to the accused after rejection of the first bail
application. It cannot be said that a second bail
application would not be maintainable. The
maintainability of such bail application is there
but consideration of the prayer for bail is subject
to the availability of fresh and new grounds
which if not available would render reviewing
the earlier order rejecting the bail application. In
the case of Babu Singh (supra), the Court was
considering a bail application of an accused who
was acquitted by the Sessions Court against
which the St.had filed an appeal against
acquittal in the High Court which was successful
and the findings of the Sessions Judge were
reversed holding the accused persons guilty and
sentencing them for the offences. Against the
said judgment and order of the High Court, a
statutory appeal was carried to the Apex Court.
Before the Apex Court, a second bail application
was filed which was the consideration in which
the said judgment and order has been passed.
The
Apex
Court
with
regards
to
the
maintainability of a second bail application held
that an order refusing an application for bail
does not necessarily preclude another, on a later
occasion,
giving
more
materials,
further
developments
and
different
considerations.
(Para 13)

In so far as the part of the maintainability of a
second bail application is concerned, it is no
more res-integra that the same is maintainable.
The question which arises is whether without
any fresh new and changed circumstances, a
Court should consider a subsequent bail
application ignoring its previous order rejecting
the previous bail application or not. (Para 16)

In the opinion of the Court, the same would not
be possible. A subsequent bail application is
maintainable but consideration of the prayer of
bail would depend on the facts as to whether
fresh and new grounds have been pleaded and
are available or not. (Para 17)

Considering the arguments of learned counsels
for the parties, perusing the records and the law
5 All. Rajkaran Patel Vs. State of U.P.
1827
on the issue, there is no fresh and new ground
available in the present second bail application.
This Court does not find any substantial change
in the circumstance so far as merit of the case is
concerned. This Court does not a find it a fit
case for bail. (Para 19)

Bail Application rejected. (E-14)

List of Cases cited:

1. Babu Singh & ors.Vs St.of U.P.: AIR 1978 SC
527

2. Dal Chand & ors.Vs St.of U.P.: 2000 Cri LJ
4579

3. St.of Mah. Vs Buddhikota Subha Rao: 1989
Supp (2) SCC 605

4. Satya Pal Vs St.of U.P.: 1998 SCC OnLine All
1224: (1998) 37 ACC 287

5. St.of M.P. Vs Kajad: (2001) 7 SCC 673

6. Kalyan Chandra Sarkar Vs Rajesh Ranjan:
(2005) 2 SCC 42

(Delivered by Hon'ble Samit Gopal, J.)

1. List revised.

2. Heard Sri Ram Autar Verma, Sri
Vivek Mishra and Sri Amarjeet Singh,
learned counsels for the applicant, Sri
Vinod Kumar Sahu, learned panel counsel
for the High Legal Service Committee and
Sri
U.P.
Singh,
learned
Additional
Government Advocate for the State of U.P.
and perused the records.

3. This second bail application under
Section
439
of
Code
of
Criminal
Procedure, 1973 has been filed by the
applicant
Rajkaran
Patel,
seeking
enlargement on bail during trial in
connection with Sessions Trial No. 31 of
2022 (State Vs. Rajkaran Patel and others)
arising out of Case Crime No. 198 of 2021,
under Sections 366, 376, 354-A, 328, 323,
504, 506 IPC, registered at P.S. Civil Lines,
District Prayagraj, pending in the court of
learned Additional Sessions Judge-II/FTC,
Allahabad.

4. The first bail application of the
applicant was rejected by this Court vide
order dated 26.05.2022 passed in Criminal
Misc. Bail Application No. 48511 of 2021
(Rajkaran Patel Vs. State of U.P.).

5. Learned counsels for the applicant
argued that the present second bail
application has although been filed on
behalf of the applicant without any change
in circumstances but there are fresh and
new grounds which have been pleaded and
are to be argued. It is submitted that a
second bail application is maintainable in
view of the judgment of the Apex Court in
the case of Babu Singh and others Vs.
State of U.P. : AIR 1978 SC 527 and also
in view of the judgment of a Division
Bench of this Court in the case of Dal
Chand and others Vs. State of U.P. : 2000
Cri LJ 4579. It is submitted that the Apex
Court has held that a second bail
application on a later occasion would be
maintainable giving more material, further
developments and different considerations.
It is submitted that the Division Bench of
this Court has while following the said
judgment of the Apex Court in the case of
Babu Singh (supra) held the same while
answering a question referred to it.

6. It is next argued while placing para
20(q) of the affidavit in support of the bail
application that the applicant has been
falsely implicated in the present case. The
reason
for
false
implication
is
a
matrimonial dispute which has turned into
the present dispute out of proportion.
Karuna Pati Patel the father of the victim
1828 INDIAN LAW REPORTS ALLAHABAD SERIES
used to bring cases of his area to the
applicant for being filed in the High Court.
The victim as per her statement recorded
under Section 164 Cr.P.C. has stated that
she has come to the chamber of the
applicant for the first time on 03.01.2020 at
Chhota Baghara, Prayagraj so that she may
start her legal practice after getting her
degree of LL.B. After her admission in the
1st year on 28.12.2020, the victim started
to mount pressure on the applicant to marry
Shivraj Patel the son of the applicant with
herself and keep her with him as his junior
after which she would attend the High
Court as an Advocate even though she was
not holding a degree and was not registered
in the Bar Council to which the applicant
did not agree and in so far as the proposal
for marriage is concerned, the same was
discussed by the applicant with his wife
and his son after which it was rejected
which caused bitterness in the relationship
between him and the victim and her father,
after which her father asked for return of all
the professional files for engaging another
counsel which would be managed through
the victim to which the applicant refused by
stating that he would return them only after
the consent of the clients. Her father
threatened
the
applicant
of
dire
consequences including false implication in
criminal cases and as such the applicant has
been implicated in the present case.

7. It is further argued that in so far as
the co-accused Sipahilal Shukla, Advocate is
concerned,
he
has
also
been
falsely
implicated in the present case due to the fact
that he had tried to persuade the victim and
her father not to take such extreme steps in
such a petty matter but the persuasion fell on
deaf ears. The matter could not be settled
after which the present FIR was lodged
against the applicant and Sipahilal Shukla on
07.04.2021 with false allegations.

8. Further, learned counsels for the
applicant while placing paragraph nos. 21 to
24 of the affidavit in support of the bail
application have argued that the story as
narrated by the victim in her statement
recorded under Section 164 Cr.P.C. is a false
and cooked up story inasmuch as it is stated
that she was administered poison but the
poisoning was actually in the month of July,
2020. It is further submitted that even in so
far as the allegations of the victim getting
pregnant due to the illegal acts of the
applicant
and
her
being
administered
medicine for abortion is concerned, the same
is false and concocted story. It is further
submitted that one Km. Rakhi is stated to be
a person who had helped the victim when she
met her on 29.06.2021. It is submitted that
the victim and Km. Rakhi are persons who
have formed a gang of Advocates and are
entangling people in fake cases for extorting
money from them. It is argued that a coordinate Bench of this Court has vide order
dated 18.08.2022 which is annexed as
annexure 20 to the affidavit passed in a 482
application being Crl. Misc. Application u/s 482
No. 20438 of 2022 (Nikki Devi Vs. State of
U.P. and another) has directed the CBI to
conduct preliminary enquiry in 47 cases as per
directions contained in para 12 of the said order.

9. Learned counsels have further
while placing the copy of the order sheet of
the
trial
court
from
12.01.2022
to
02.01.2023 which is annexure S.A. 1 to the
supplementary affidavit dated 16.01.2023
submitted that the case was committed to
the Court of Sessions on 12.01.2022 but till
date charges in the matter have not been
framed. It is submitted that the applicant is
in jail since 25.09.2021. The applicant be
enlarged on bail.

10. Per contra, learned panel counsel
appearing for the High Court Legal Service
5 All. Rajkaran Patel Vs. State of U.P.
1829
Committee on behalf of the victim
submitted that the first bail application of
the applicant has been rejected by this
Court
on
merits
vide
order
dated
26.05.2022. It is submitted while placing
para 29 of the affidavit in support of the
bail application that totally false and
baseless allegations have been levelled in
the said paragraph that the victim has told
the applicant that she would give her
testimony in the trial court in his favour for
which she demanded Rs. 10 lakhs on which
the applicant showed his inability to fulfill
the same. It is submitted that to the contrary
the victim is being threatened by various
persons on behalf of the applicant despite
the fact that the applicant is in jail. It is
submitted that the present bail application
which is the second bail application has
been filed without any fresh and new
ground. It is argued that all the grounds as
taken were available at the time of hearing
of the first bail application. It is submitted
that there is no subsequent development
after rejection of the first bail application
which would entitle the applicant to file a
second bail application. It is submitted that
the statement of the victim recorded under
Section 164 Cr.P.C. fully corroborates the
prosecution version. Merely by stating that
the allegations therein are false and
incorrect, does not at this stage entitle the
applicant for grant of bail. It is submitted
that the said statement of the victim was
considered in extenso by this Court while
deciding the first bail application. It is
further submitted that in so far as the
version of the victim is concerned, the
same also finds corroboration from the
narration given by her to the Medical
Officer
who
conducted
her
medical
examination on 02.07.2021. It is submitted
that the applicant is a professional and is
practising a noble profession of being an
Advocate. He has indulged in an act that
too with a girl who is also aspiring to join
the noble profession. It is submitted that the
present bail application is devoid of any
merit and deserves to be dismissed.

11. Learned counsel for the State also
opposed the prayer for bail vehemently by
adopting the arguments of learned panel
counsel for the High Court Legal Service
Committee on behalf of the victim. It is
further argued that the charge sheet in the
matter has been submitted against the
applicant on 19.11.2021. The first bail
application of the applicant was decided
after submission of charge sheet by
considering all the material collected
during investigation. It is submitted that
there is no fresh and new ground in the
present second bail application. The first
bail application of the applicant has been
rejected on merits by a detailed order by
this Court. It is submitted that the present
second bail application be dismissed.

12. After having heard learned
counsels for the parties and perusing the
records, it is evident that this is a second
bail application. The first bail application
of the applicant was rejected by this Court
vide order dated 26.05.2022. The same is
extracted herein-below:-

"1. Heard Sri Rajiv Lochan Shukla,
learned counsel for the applicant, Sri
Sukhvir Singh, learned panel counsel for
the High Court Legal Service Committee
and Sri B.B. Upadhyay, learned counsel for
the State and perused the material on
record.

2. This bail application under Section
439 of Code of Criminal Procedure has
been filed by the applicant- Rajkaran Patel,
seeking enlargement on bail during trial in
connection with Case Crime No. 198 of
2021, under Sections 366, 376, 354-A, 328,
1830 INDIAN LAW REPORTS ALLAHABAD SERIES
323, 504, 506 I.P.C., registered at Police
Station Civil Lines, District Prayagraj.

3. The first information report of the
present case was lodged on 07.04.2021 at
00:32 hours, under Section 366 I.P.C. by
Karunapati Patel against the applicant and
Sipahi Lal Shukla in connection with an
incident alleged to have taken place on
06.04.2021 at 13:30 hours alleging therein
that the first informant is a resident of
village Kaudru, Police Station Sarai
Inayat, District Prayagraj. His daughter
aged about 20 years is a LL.B. student and
was practising in the High Court with
Rajkaran Patel (the present applicant) who
is a resident of Village Sohasha, Police
Station
Mungra
Badshahpur,
District
Jaunpur who is an Advocate in the High
Court. On the day of occurrence at about
1:30 pm from near Alia Law Agency, both
the accused persons have enticed away his
daughter. The date of birth of his daughter
is 15.11.2000. The first information report
is thus lodged.
4. Learned counsel for the applicant argued
that the applicant has been falsely
implicated in the present case. It is further
argued
that
the
prosecutrix
was
interrogated under Section 161 Cr.P.C. and
also her statement was recorded under
Section 164 Cr.P.C. The copy of the
statement recorded under Section 161
Cr.P.C. is annexed as Annexure-5 to the
affidavit in support of bail application
whereas the certified copy of her statement
recorded under Section 164 Cr.P.C. is
annexed as Annexure-SA-1 to the second
supplementary affidavit dated 28.04.2022.
Learned counsel has placed before the
Court both the statements and has argued
that there has been an improvement by the
prosecutrix in her statement recorded under
Section 164 Cr.P.C. as that of her statement
recorded under Section 161 Cr.P.C. It is
further argued that the prosecutrix in her
statement recorded under Section 161
Cr.P.C. has not stated of the incident as had
been stated to be continuing since long but
has not mentioned the actual date and time
since when she had been subjected to
sexual assault by the applicant. It is argued
that when the prosecutrix was brought
before
the
doctor
for
her
medical
examination she has although narrated
about the entire incident in detail but even
therein there is a variation of her version as
stated by her in her statements recorded
under Section 161 Cr.P.C. and under
Section 164 Cr.P.C. It is further argued that
the medical examination of the prosecutrix
was conducted on 02.07.2021 whereas as
per her version as stated in her statement
recorded under Section 161 Cr.P.C., she
was assaulted on 29.06.2021 in front of
Gate No.5 of the High Court but the doctor
although has found one healed injury on
her breast and an abrasion on her left arm
but had opined that there is no fresh injury.
It is argued that connecting the said injury
with the present incident would not at all be
in favour of the version of the prosecutrix
as stated by her.

5. Learned counsel for the applicant
further argued that the prosecutrix has
stated that she had aborted her pregnancy
four times but there is no evidence
whatsoever regarding the said allegation
and the same can very-well as such be said
to be an exaggerated version given by her
and as such Section 313 I.P.C. was left out.
The applicant was not taken on remand
under the said Section vide order dated
17.12.2021, the copy of which is annexed
as Anneuxre-SA1 to the supplementary
affidavit dated 08.04.2022. It is argued that
the prosecutrix has stated in her statements
that she had met one Ms. Rakhi on
29.06.2021 but the said person has not
been made as a witness in the present case
who is said to have helped the prosecutrix
5 All. Rajkaran Patel Vs. State of U.P.
1831
as per her own version. Paragraph 23 of
the affidavit in support of bail application
has been placed to buttress the said
argument. It is further argued that the
prosecutrix in her statement recorded under
Section 164 Cr.P.C. has stated that on
05.04.2021 when she had gone to the High
Court, the accused persons met her at a
crossing near the High Court, co-accused
Sipahi Lal assaulted her and at that time
her mobile was connected with her father
who was also listening to the same. It is
argued that even the said fact is false and
incorrect as there is no reference about it in
the present first information report which
has been lodged after 02 days of the
alleged incident of her being beaten up. It
is argued that the prosecutrix is a major
girl. She as per her own version used to
come to the High Court with an Advocate
and was working with him and as such was
in the knowledge of legal proceedings. She
kept on changing and improving her
version. The applicant is having criminal
history of one case which has been
disclosed and explained in paragraph 15 of
the affidavit but in the said case till date
although it is of the year 2019, he has not
received any summons or any notice from
the police or any court. The applicant is in
jail since 25.09.2021.
6. Per contra, learned panel counsel for the
High Court Legal Service Committee and
learned
counsel
for
the State
have
vehemently opposed the prayer for bail and
argued that the applicant is named in the
first information report. The prosecutrix
has in her statements recorded under
Section 161 Cr.P.C. and under Section 164
Cr.P.C. named the applicant and has
assigned specific role to him. It is argued
that the allegation that the prosecutrix was
working with the applicant in the High
court in his office is not denied. Even the
fact that she was known to him is not
denied. It is argued that the present case is
such in which an Advocate has exploited a
girl who was a law student on the pretext of
imparting legal training to her through his
office and courts. It is argued that there are
serious allegations against the applicant.
The prosecutrix has stated of the applicant
exploiting her at the initial stage and then
committing sexual assault on her. She has
explained the circumstances under which
she was being threatened and was
continued to be exploited. In so far as the
physical assault is concerned, the doctor
has found injuries on her body which
corroborate with her version. It is further
argued that during investigation, the police
added Shivraj Patel, Dheerendra Kumar
Saroj and Saroj Devi as accused but as of
now charge-sheet being Charge Sheet No.
01 dated 18.11.2021 has been filed only
against Shivraj Patel and the present
applicant but in so far as the investigation
with regards to the other accused persons
is concerned, the same is pending. It is
further argued that since the applicant is
an Advocate, if released on bail, there are
chances of his tampering with evidence and
may influence the investigation as the
investigation for other accused persons is
pending. The prayer for bail be thus
rejected.

7. Learned counsel appearing for the
High Court Legal Service Committee has
further informed the Court that the
applicant is involved in another case being
Case Crime No. 193 of 2021, Police Station
Civil Lines, District Allahabad which has
not been disclosed and explained in the bail
application. In so far as the disclosure in
paragraph 15 of the affidavit regarding one
criminal history of the applicant is
concerned, it is argued by producing the
photocopy of the said first information
report that the applicant is named in the
1832 INDIAN LAW REPORTS ALLAHABAD SERIES
first information report along with four
other unknown persons.

8. After having heard the learned
counsel for the parties and perusing the
record, it is evident that the applicant is
named in the first information report, in the
statements of the prosecutrix recorded
under Section 161 Cr.P.C. and under
Section 164 Cr.P.C. The name of the
applicant and the role assigned to him is
consistent throughout. The allegations are
of sexual assault and physical assault upon
the prosecutrix which had continued for a
substantial long period. The prosecutrix
was junior in the office of the applicant.
The allegations are against a person
practising law and is a person in uniform
involved in a noble profession. The office of
a lawyer is not less respected than Courts
of law. The act as complained of by her
against the applicant is told by her in detail
in her statements recorded under Section
161 Cr.P.C. and under Section 164 Cr.P.C.
There has been no reason spelt out as to
why
the
applicant
is
being
falsely
implicated. The investigation for other
accused persons is pending and the
apprehension of learned counsels for the
State and of the panel lawyer of High Court
Legal Service Committee of the applicant
being in a position to influence the
investigation and tamper with the evidence
cannot be ruled out at this stage.

9.
Looking
to
the
facts
and
circumstances of the case, I do not find it a
fit case for bail, hence, the bail application
is rejected.

10. This Court has vide order dated
08.04.2022 directed the District and
Sessions Judge, Prayagraj to send the
statement of the prosecutrix recorded under
Section 164 Cr.P.C. from the concerned
Court. As per the office report dated
25.4.2022, the compliance of the order has
been done and a sealed envelope has been
received. The said envelope was opened on
the directions of the Court by the Bench
Secretary during arguments.

11. After conclusion of the arguments,
this Court directed the Bench Secretary of
this Court to seal the same which has been
sealed. The Registrar General is directed to
remit back the said sealed envelope to the
District and Sessions Judge, Prayagraj,
within three days from today, who shall
place the same at its appropriate place."

13. Although a second bail application
on behalf of the accused is not barred and is
maintainable but considerations of the
grounds of bail are the factors to be taken
into account in it. A second bail application
is always considered on fresh and new
grounds available to the accused after
rejection of the first bail application. It
cannot be said that a second bail
application would not be maintainable. The
maintainability of such bail application is
there but consideration of the prayer for
bail is subject to the availability of fresh
and new grounds which if not available
would render reviewing the earlier order
rejecting the bail application. In the case of
Babu Singh (supra), the Court was
considering a bail application of an accused
who was acquitted by the Sessions Court
against which the State had filed an appeal
against acquittal in the High Court which
was successful and the findings of the
Sessions Judge were reversed holding the
accused persons guilty and sentencing them
for the offences. Against the said judgment
and order of the High Court, a statutory
appeal was carried to the Apex Court.
Before the Apex Court, a second bail
application was filed which was the
consideration in which the said judgment
and order has been passed. The Apex Court
with regards to the maintainability of a
second bail application held that an order
5 All. Rajkaran Patel Vs. State of U.P.
1833
refusing an application for bail does not
necessarily preclude another, on a later
occasion, giving more materials, further
developments and different considerations.

14. The Division Bench of this Court
in the case of Dal Chand (supra) was
deciding a reference made by a single
Judge Bench as to whether a second bail
application at the instance of a convicted
accused
in
a
pending
appeal,
is
maintainable or not.

15. The Division Bench vide the said
judgment and order while answering the
reference and relying upon the judgment of
the Apex Court in the case of Babu Singh
(supra) held that a second application for
bail at the instance of a convicted accused,
is maintainable in a criminal appeal.

16. In so far as the part of the
maintainability of a second bail application
is concerned, it is no more res-integra that
the same is maintainable. The question
which arises is whether without any fresh
new and changed circumstances, a Court
should
consider
a
subsequent
bail
application ignoring its previous order
rejecting the previous bail application or
not.

17. In the opinion of the Court, the
same would not be possible. A subsequent
bail
application
is
maintainable
but
consideration of the prayer of bail would
depend on the facts as to whether fresh and
new grounds have been pleaded and are
available or not.

18. In the case of State of
Maharashtra Vs. Buddhikota Subha Rao
: 1989 Supp (2) SCC 605 it has been held
by the Apex Court that once a bail
application was rejected there was no
question of granting a similar prayer.
Granting it would be virtually overruling
the earlier decision without there being a
change in the fact-situation. A substantial
change is one which has a direct impact on
the earlier decision and not merely
cosmetic changes which are of little or no
consequence. It has been held as under :-

"7. Liberty occupies a place of pride in
our socio-political order. And who knew
the value of liberty more than the founding
fathers of our Constitution whose liberty
was curtailed time and again under
Draconian laws by the colonial rulers. That
is why they provided in Article 21 of the
Constitution that no person shall be
deprived of his personal liberty except
according to procedure established by law.
It follows therefore 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
anti-national elements. Article 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 undertrials
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 possibility 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
present
case
the
successive
bail
applications preferred by the respondent
were rejected on merits having regard to
1834 INDIAN LAW REPORTS ALLAHABAD SERIES
the gravity of the offence alleged to have
been committed. One such Application No.
36 of 1989 was rejected by Suresh, J.
himself. Undeterred the respondent went on
preferring successive applications for bail.
All such pending bail applications were
rejected by Puranik, J. by a common order
on 6-6-1989. Unfortunately, Puranik, J. was
not aware of the pendency of yet another
bail application No. 995 of 1989 otherwise
he would have disposed it of by the very
same common order. Before the ink was
dry on Puranik, J.'s order, it was upturned
by the impugned order. It is not as if the
court passing the impugned order was not
aware of the decision of Puranik, J.; in fact
there is a reference to the same in the
impugned order. Could this be done in the
absence
of
new
facts
and
changed
circumstances? What is important to realise
is that in Criminal Application No. 375 of
1989, the respondent had made an identical
request as is obvious from one of the
prayers (extracted earlier) made therein.
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 no
consequence. Between the two orders there
was a gap of only two days and it is
nobody's case that during these two days
drastic
changes
had
taken
place
necessitating the release of the respondent
on bail. Judicial discipline, propriety and
comity demanded that the impugned order
should not have been passed reversing all
earlier orders including the one rendered by
Puranik, J., 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, we think, is to direct that the
matter be placed before the same learned
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
with despatch. It will also result in
consistency. In their view that we take we
are fortified by the observations of this
Court in para 5 of the judgment in Shahzad
Hasan Khan v. Ishtiaq Hasan Khan [(1987)
2 SCC 684] . For the above reasons we are
of the view that there was no justification
for passing the impugned order in the
absence of a substantial change in the factsituation. That is what prompted Shetty, J.
to describe the impugned order as 'a bit out
of the ordinary'. Judicial restraint demands
that we say no more.

 (emphasis supplied)

19. A Division Bench of this Court in
the case of Satya Pal Vs. State of U.P. :
1998 SCC OnLine All 1224 : (1998) 37
ACC 287 was deciding a question referred
to by a single Judge Bench whether a fresh
argument which was available earlier
should be allowed to be advanced in a
5 All. Rajkaran Patel Vs. State of U.P.
1835
second bail application. The question as
before the Division Bench was as follows :-

"1. The following question has been
referred by learned single Judge to be
decided by this Court:-

"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"."

The Division Bench held that a fresh
argument in a second bail application
cannot be allowed to be advanced on those
very facts which were available to the
accused at the time of the moving and
rejection of the first bail application. The
answer as given to the referred question is
as follows :-

"9.
.....................................
Accordingly our answer to the question
referred is that fresh arguments in a second
bail application for an accused cannot be
allowed to be advanced on those very facts
that were available to the accused while the
first bail application was moved and
rejected."

20. The Apex Court in the case of
State of M.P. Vs. Kajad : (2001) 7 SCC
673 has held that although successive bail
applications are permissible but under
changed circumstances. It has been held as
under :-

"8. It has further to be noted that the
factum of the rejection of his earlier bail
application bearing Miscellaneous Case
No. 2052 of 2000 on 5-6-2000 has not been
denied by the respondent. 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 v. Harbhajan Singh Bajwa
[(2001) 1 SCC 169 : 2001 SCC (Cri) 113]
and various other judgments."

21. Further, the Apex Court in the
case of Kalyan Chandra Sarkar Vs.
Rajesh Ranjan : (2005) 2 SCC 42 has
held that subsequent bail application can be
filed if there is a change in the fact situation
or law which would render the previous
view obsolete. The Court rejected the
argument that successive bail application
can be filed on a ground already rejected by
courts earlier and it would not be violative
of Article 21 of the Constitution of India. It
has been held as under :-

"8.
On
23-9-2002
the
accusedrespondent
moved
the
eighth
bail
application which came to be allowed by
the High Court by its order dated 23-52003 solely on the ground that the accusedrespondent had undergone incarceration for
a period of 3 years and that there was no
likelihood of the trial being concluded in
the near future and an appeal filed against
the said grant of bail came to be allowed
[Ed.: In Kalyan Chandra Sarkar v. Rajesh
Ranjan, op. cit. fn. 2, above] on the ground
that the High Court could not have allowed
the bail application on the sole ground of
delay in the conclusion of the trial without
taking into consideration the allegation
made by the prosecution in regard to the
existence of prima facie case, gravity of
offence, and the allegation of tampering
with the witness by threat and inducement
when on bail. This Court held [Ed.: In
Kalyan Chandra Sarkar v. Rajesh Ranjan,
op. cit. fn. 2, above] that since the above
factors go to the root of the right of the
accused to seek bail, non-consideration of
1836 INDIAN LAW REPORTS ALLAHABAD SERIES
the same and grant of bail solely on the
ground of long incarceration vitiated the
order of the High Court granting bail. This
Court also observed that though an accused
had a right to make successive applications
for grant of bail the court entertaining such
subsequent bail applications has duty to
consider the reasons and grounds on which
the earlier bail applications were rejected
and in such cases the court also has a duty
to record what are the fresh grounds which
persuaded it to take a view different from
the one taken in the earlier applications.
This Court in that order also found fault
with the High Court for not recording any
fresh grounds while granting bail and for
not taking into consideration the basis on
which
earlier
bail
applications
were
rejected. The Court also emphasised in the
said order that ignoring the earlier orders of
this Court is violative of the principle of
binding nature of the judgments of the
superior court rendered in a lis between the
same parties, and noted that such approach
of the High Court in effect amounts to
ignoring or overruling and thus rendering
ineffective the principles enunciated in the
earlier orders especially of the superior
courts. On that basis, the appeal of the
complainant challenging the grant of bail
came to be allowed cancelling the bail
granted to the respondent. This order of this
Court is reported as Kalyan Chandra Sarkar
v. Rajesh Ranjan [(2004) 7 SCC 528 : 2004
SCC (Cri) 1977]."

*******************************
*************

"20. The decisions given by a superior
forum, undoubtedly, are 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
of the guarantee conferred on a person
under Article 21 of the Constitution, it is
open to the aggrieved person to make
successive bail applications even on a
ground already rejected by the courts
earlier, including the Apex Court of the
country."

 (emphasis supplied)"

22. Now reverting back to the present
case, an effort has been made to spell out
the reason for false implication while
placing para 20(q) of the affidavit. The
same is merely a version of the accused
applicant. In so far as, the other arguments
relating to the falsity of the statement of the
victim recorded under Section 164 Cr.P.C.
by
clubbing
it
with
the
event
of
administering poison is concerned, the said
statement has been considered by this
Court
while
deciding
the
first
bail
application and as such there is no occasion
to reconsider it. If there is any contradiction
in it with regards to the version as in the
First Information Report and also any
argument is being raised to discredit the
same it has to be judged in trial only after
evidence.

23. With regards to the argument of
Km. Rakhi and the order of a co-ordinate
Bench of this Court dated 18.08.2022
directing certain matters to be preliminarily
enquired into by the CBI is concerned,
although the victim referred to Km. Rakhi
5 All. Manoj Kumar Bathla Vs. State of U.P. & Anr.
1837
in her statement recorded under Section
164 Cr.P.C. but even as has been observed
in the order rejecting the first bail
application of the applicant, Km.