# Satya Prakash & Anr. (In Jail) v. State of U.P

- **Citation:** (2021) 8 ILRA 213
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-04
- **Case number:** Criminal Appeal No. 1774 of 2012
- **Bench:** Devendra Kumar Upadhyaya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satya-prakash-anr-in-jail-v-state-of-u-p-47188
- **Pages:** 11

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973- Section 389- Section
439- Filing of Successive Bail Applications-
Under section 439 of the Code, successive
bail applications would be permissible to
be moved even after rejection of the
earlier bail application for the reason that
situation
during
the
course
of
investigation and trial keep on changing
depending on the discovery/exploration of
evidence or adducing the evidence -
Moving
successive
bail
applications,
where
earlier
application
has
been
rejected on merits in pending appeal,
under section 389 of the Code would not
be permissible for the reason that in case
successive bail applications are heard,
such hearing may amount to review of the
earlier order whereby the prayer for bail
moved by the same appellant stands
rejected
on
merits.
Such
review
in
criminal
proceedings
is
not
legally
permissible - The order passed disposing
of
an
application
for
bail
is
an
interlocutory order, in the opinion of the
Court under certain circumstances the
successive bail applications in the pending
appeal can be considered, however, the
scope of entertaining successive bail
applications in the pending appeal is
extremely narrow.

Successive bail applications, u/s 439 of the Cr.Pc
can be filed on the ground of subsequent facts
and change in circumstances, however once a
bail application u/s 389 of the Code is rejected
214 INDIAN LAW REPORTS ALLAHABAD SERIES
on merits then consideration of a second bail
application would amount to review of the
previous order which is impermissible but the
Court
can
consider
the
successive
bail
applications in Appeal on certain grounds.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 389- Bail on
basis of prolonged detention- Prolonged
detention in itself cannot be the sole
ground of seeking bail by the convicts in
pending appeal. For seeking bail even in
criminal appeal the appellant needs to
establish a prima facie case in his favour
to
demonstrate
that
there
exists
a
reasonable prospect of his acquittal in the
appeal showing serious infirmity in the
judgment of conviction. In considering the
prayer for bail in a case involving a serious
offence like murder punishable under
section 302 of I.P.C., the Court should
consider all the relevant factors such as
nature of accusation, the manner in which
crime is said to have been committed, the
gravity of offence and desirability of
releasing the accused on bail after he has
been convicted for committing serious
offence of murder.

For granting bail in a pending appeal, the Court
has to consider all relevant facts and period of
detention is not the sole ground for grant of bail.

The learned trial court has recorded a
finding
that
P.W.1-
Pradeep
Kumar,
P.W.2-Laxmi
Narain
and
P.W.3-Smt.
Premwati have described the incident in
vivid
details
without
any
material
contradictions-
A
finding
has
been
returned by the learned trial court that the
postmortem report does not belie the
medical examination report which was
conducted on the person of the deceased
before he was referred for treatment to
the Medical College, Lucknow.

The
eyewitness
account
is
credible
and
trustworthy and the same is corroborated with
the medical evidence, hence no ground for
grant of bail is made out.
 (Para 12, 13, 14, 15, 17, 19, 22)

Criminal Appeals rejected.(E-2)
Case Law/Judgements relied upon:-

## Text

8 All. Satya Prakash & Anr. Vs. State of U.P.
213
the operation of consequential proceedings
pending under Rule 109 of the Rules
framed under the Act. The Deputy Director
of Consolidation has not at all considered
the consequences of non extension of
interim order granted earlier in the revision.
Even otherwise from the perusal of the
impugned order it is apparent that the
Deputy Director of Consolidation has not at
all applied his mind to the matter pertaining
to extension of interim order.

9. Upon applicability of the aforesaid
facts in the present circumstances, it is
apparent that no cogent reasons whatsoever
have been indicated by the Deputy Director
of Consolidation for not extending the
interim order granted earlier. As such the
order is clearly vitiated.

10. Consequently a writ in the nature
of Certiorari is issued quashing the
impugned order dated 9th March, 2021
passed
by
the
Deputy
Director
of
Consolidation in revision No. 629/1027
(Subhash Singh and others versus Abu
Talha and others). A further writ in the
nature of Mandamus is issued extending
the benefit of the interim order dated 2nd
March, 2021 passed earlier in revisional
proceedings till the final decision in the
revision.

11. With the aforesaid observations
and directions, the writ petition stands
allowed at the admission stage itself.
----------
(2021)08ILR A213
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.08.2021

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
Criminal Appeal No. 1774 of 2012
and
Criminal Appeal No. 1778 of 2012

Satya Prakash & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Rakesh Pathak, R.P. Misra, Ravi Dutt Misra,
U.K. Pandey, Vishnu Dev Shukla

Counsel for the Respondent:
Govt. Advocate, Diwakar Singh, Ram Saran
Awasthi

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 389- Section
439- Filing of Successive Bail Applications-
Under section 439 of the Code, successive
bail applications would be permissible to
be moved even after rejection of the
earlier bail application for the reason that
situation
during
the
course
of
investigation and trial keep on changing
depending on the discovery/exploration of
evidence or adducing the evidence -
Moving
successive
bail
applications,
where
earlier
application
has
been
rejected on merits in pending appeal,
under section 389 of the Code would not
be permissible for the reason that in case
successive bail applications are heard,
such hearing may amount to review of the
earlier order whereby the prayer for bail
moved by the same appellant stands
rejected
on
merits.
Such
review
in
criminal
proceedings
is
not
legally
permissible - The order passed disposing
of
an
application
for
bail
is
an
interlocutory order, in the opinion of the
Court under certain circumstances the
successive bail applications in the pending
appeal can be considered, however, the
scope of entertaining successive bail
applications in the pending appeal is
extremely narrow.

Successive bail applications, u/s 439 of the Cr.Pc
can be filed on the ground of subsequent facts
and change in circumstances, however once a
bail application u/s 389 of the Code is rejected
214 INDIAN LAW REPORTS ALLAHABAD SERIES
on merits then consideration of a second bail
application would amount to review of the
previous order which is impermissible but the
Court
can
consider
the
successive
bail
applications in Appeal on certain grounds.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 389- Bail on
basis of prolonged detention- Prolonged
detention in itself cannot be the sole
ground of seeking bail by the convicts in
pending appeal. For seeking bail even in
criminal appeal the appellant needs to
establish a prima facie case in his favour
to
demonstrate
that
there
exists
a
reasonable prospect of his acquittal in the
appeal showing serious infirmity in the
judgment of conviction. In considering the
prayer for bail in a case involving a serious
offence like murder punishable under
section 302 of I.P.C., the Court should
consider all the relevant factors such as
nature of accusation, the manner in which
crime is said to have been committed, the
gravity of offence and desirability of
releasing the accused on bail after he has
been convicted for committing serious
offence of murder.

For granting bail in a pending appeal, the Court
has to consider all relevant facts and period of
detention is not the sole ground for grant of bail.

The learned trial court has recorded a
finding
that
P.W.1-
Pradeep
Kumar,
P.W.2-Laxmi
Narain
and
P.W.3-Smt.
Premwati have described the incident in
vivid
details
without
any
material
contradictions-
A
finding
has
been
returned by the learned trial court that the
postmortem report does not belie the
medical examination report which was
conducted on the person of the deceased
before he was referred for treatment to
the Medical College, Lucknow.

The
eyewitness
account
is
credible
and
trustworthy and the same is corroborated with
the medical evidence, hence no ground for
grant of bail is made out.
 (Para 12, 13, 14, 15, 17, 19, 22)

Criminal Appeals rejected.(E-2)
Case Law/Judgements relied upon:-

1. Girand Singh Vs St. of U.P.,2010 (2) ACR
1362

2. Sidhartha Vashisht @ Manu Sharma Vs State
(NCT of Delhi), (2008) 5 SCC 230

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.)

1. Heard Shri R. P. Misra, learned
counsel for the appellants, Shri Chandra
Shekhar
Pandey,
learned
Additional
Government Advocate representing the
State and the learned counsel for the
Complainant.

2. Perused the record.

3. These bail applications have been
placed before me as per the order passed by
Hon'ble the Chief Justice on 12.03.2019 in
view of difference of opinion between two
Hon'ble Judges expressed in the order of
the Division Bench, dated 01.03.2017.

4.

Criminal
Miscellaneous
Application No.3582 (B) of 2015 has been
filed by appellant-Anil in Criminal Appeal
No.1774 of 2012 whereas Criminal Misc.
Application No.2539 (B) of 2015 has been
filed on behalf of appellant-Sunil Kumar in
Criminal Appeal No.1778 of 2012. Both
these appeals have been filed against the
judgment and order of conviction and
sentencing dated 01.12.2012 passed by the
Additional Sessions Judge, Court No.1,
Barabanki in Sessions Trial No.93/2007
which had arisen out of Case Crime No.271
of 2006, under sections 302/34, 323/34,
504 and 506 of I.P.C., Police StationAsandra, District-Barabanki. All the three
appellants, namely, Satya Prakash and Anil
(Criminal Appeal No.1774 of 2012) and
Sunil Kumar (Criminal Appeal No.1778 of
8 All. Satya Prakash & Anr. Vs. State of U.P.
215
2012) have been convicted for the offences
under section 302/34 of I.P.C. and section
323/34 of I.P.C. Appellants have accordingly
been sentenced to undergo life imprisonment
with a fine of Rs.20,000/- with default clause
whereby it has been directed that in case of
non-payment of fine they shall undergo six
months further imprisonment for offence
under section 302/34 of I.P.C. Similarly for
the offence under section 323/34 of I.P.C. the
appellants have been sentenced with a fine of
Rs.1000/- with default clause, that is to say,
in case they fail to pay the fine they shall
undergo further imprisonment for a period of
one month.

5. These are the second bail
applications moved on behalf of the
appellants, namely, Anil and Sunil Kumar.
The first bail application moved by these
appellants along with appellant Satya Prakash
was rejected by a Division Bench of this
Court vide order dated 06.08.2013. The said
order dated 06.08.2013 is quoted hereunder:

"Court No. - 25

Criminal
Misc.
Application
No.112467 of 2012

In re:

Case :- CRIMINAL APPEAL
No. - 1774 of 2012

Appellant :- Satya Prakash &
Another

Respondent :- State Of U.P.

Counsel for Appellant :- Rakesh
Pathak,Ravi Dutt Misra,U.K. Pandey

Counsel for Respondent :- Govt.
Advocate,Diwakar Singh

AND

Criminal
Misc.
Application
No.112656 of 2012

In re:

Case :- CRIMINAL APPEAL
No. - 1778 of 2012

Appellant :- Sunil Kumar

Respondent :- State Of U.P.

Counsel for Appellant :- Rakesh
Pathak,Ravo Ditt Misra,U.K. Pandey

Counsel for Respondent :- Govt.
Advocate,Diwakar Singh

Hon'ble Abdul Mateen,J.

Hon'ble Ashwani Kumar Singh,J.

Since
both
the
aforesaid
applications arise out of the appeals, which
have been filed against one and same
judgment and order, therefore, they are
being heard together and decided by this
common order.

Satya
Prakash
and
Anil
(appellants of Appeal No.1774 of 2012) and
Sunil Kumar (appellant of Appeal No.1778
of 2012) are convicts of Sessions Trial No.
93 of 2007. They have been convicted under
Sections 302/34 and 323/34 IPC and
sentenced for maximum term of life
imprisonment vide judgment and order
dated
01.12.2012
passed
by
learned
Additional Sessions Judge, Court No.1,
Barabanki.

After hearing learned counsel for
the appellants as well as learned Additional
Government Advocate and going through
judgment and record of lower court,
including FIR, post-mortem report of
deceased and statement of witnesses,
including two injured, we do not find any
valid and good ground to release the
appellants on bail.

Accordingly, prayer for bail of
both the appellants is refused and the
applications are rejected.

Order Date :- 6.8.2013

Chauhan/- "
216 INDIAN LAW REPORTS ALLAHABAD SERIES

6. An objection at the very outset of
hearing of these applications has been
raised that once the first bail application
moved by the appellants was rejected by a
Division Bench of this Court vide order
dated 06.08.2013 on merits, successive bail
applications in the pending appeals would
not be maintainable. The basis of the said
objection is that the grounds which have
now been taken for grant of bail were
available to the appellants when the first
bail application was heard and as such no
case is made out to release them while
hearing the second bail application. It has
thus been argued by the learned Additional
Government Advocate as also by the
learned
counsel
representing
the
complainant that fresh arguments in second
bail application should not be permitted to
be made on the facts that were available to
the
appellants
while
the
first
bail
application was heard and rejected.

7. Replying to the aforesaid objection,
learned counsel representing the appellants,
Shri R. P. Misra has vehemently argued
that any order passed by a Court while
disposing of an application for grant of bail
is only an interlocutory order and as such
with the change in the circumstances the
successive bail applications would be
maintainable and accordingly the present
second bail applications moved on behalf
of the appellants are also to be heard on
merits.

8.

Before
adverting
to
the
aforementioned issue, I deem it appropriate
to examine the difference between the
powers conferred on this Court to grant bail
to an accused under section 439 of Code of
Criminal Procedure (hereinafter referred to
as ''the Code') and the powers conferred
upon the appellate court for suspension of
sentence in pending appeal and for
releasing the appellant on bail conferred
under section 389 of the Code.

9. Section 439 of the Code is
reproduced hereunder for ready reference:

"439. Special powers of High
Court or Court of Session regarding bail.-

(1) A High Court or Court of
Session may direct-

(a) that any person accused of
an offence and in custody be released on
bail, and if the offence is of the nature
specified in sub-section (3) of section 437,
may impose any condition which it
considers necessary for the purposes
mentioned in that sub- section;

(b) that any condition imposed
by a Magistrate when releasing any
person on bail be set aside or modified:

Provided that the High Court or
the Court of Session shall, before granting
bail to a person who is accused of an
offence which is triable exclusively by the
Court of Session or which, though not so
triable, is punishable with imprisonment
for life, give notice of the application for
bail to the Public Prosecutor unless it is,
for reasons to be recorded in writing, of
opinion that it is not practicable to give
such notice.

[Provided further that the High
Court or the Court of Session shall, before
granting bail to a person who is accused
of an offence triable under sub-section (3)
of section 376 or Section 376-AB or
Section 376-DA or Section 376-DB of the
Indian Penal Code (45 of 1860), give
notice of the application for bail to the
Public Prosecutor within a period of
fifteen days from the date of receipt of the
notice of such application.]

[(1-A) The presence of the
informant or any person authorised by
him shall be obligatory at the time of
8 All. Satya Prakash & Anr. Vs. State of U.P.
217
hearing of the application for bail to the
person under sub-section (3) of Section
376 or Section 376-AB or Section 376-DA
or Section 376-DB of the Indian Penal
Code (45 of 1860).]

(2) A High Court or Court of
Session may direct that any person who
has been released on bail under this
Chapter be arrested and commit him to
custody."

10. Section 389 of the Code is also
extracted
herein
below
for
ready
reference:

"389. Suspension of sentence
pending the appeal; release of appellant
on bail:-

(1) Pending any appeal by a
convicted person, the Appellate Court
may, for reasons to be recorded by it in
writing, order that the execution of the
sentence or order appealed against be
suspended and, also, if he is in
confinement, that he be released on bail,
or on his own bond:

[Provided that the Appellate
Court shall, before releasing on bail or
on his own bond a convicted person who
is convicted of an offence punishable
with death or imprisonment for life or
imprisonment for a term of not less than
ten years, shall give opportunity to the
Public Prosecutor for showing cause in
writing against such release:

Provided further that in cases
where a convicted person is released on
bail it shall be open to the Public
Prosecutor to file an application for the
cancellation of the bail.]

(2). The power conferred by
this section on an Appellate Court may
be exercised also by the High Court in
the case of an appeal by a convicted
person to a Court subordinate thereto.

(3) Where the convicted person
satisfies the Court by which he is
convicted that he intends to present an
appeal, the Court shall,-

(i) where such person, being on
bail, is sentenced to imprisonment for a
term not exceeding three years, or

(ii) where the offence of which
such person has been convicted is a
bailable one, and he is on bail, order that
the convicted person be released on bail,
unless there are special reasons for
refusing bail, for such period as will
afford sufficient time to present the appeal
and obtain the orders of the Appellate
Court under sub- section (1); and the
sentence of imprisonment shall, so long as
he is so released on bail, be deemed to be
suspended.

(4)
When
the
appellant
is
ultimately sentenced to imprisonment for
a term or to imprisonment for life, the
time during which he is so released shall
be excluded in computing the term for
which he is so sentenced."

11. A bare perusal of the aforequoted
provisions show that certain powers are
available to the High Court and the Court
of Sessions under Section 439 regarding
bail, according to which, the High Court or
the Court of Sessions has the power to
direct that any person accused of an
offence, who is in custody, may be released
on bail and while ordering for releasing of
an accused on bail such conditions may
also be imposed which are considered
necessary. Section 389 falls in Chapter
XXIX of the Code, which contains
provisions for appeals. Section 389 of the
Code empowers the appellate Court to
suspend the execution of sentence or the
order appealed against on an appeal filed
by a convicted person, though this
provision also mandates the appellate court
218 INDIAN LAW REPORTS ALLAHABAD SERIES
to record reasons in writing for doing so. It
also empowers the appellate court to
release a convicted person on bail if he is in
confinement. What is noticeable, if the
powers conferred on this Court under
sections 439 and 389 of the Code are
compared, is that section 389 is available to
a convicted person on his filing appeal
against the order of conviction/sentence
whereas section 439 of the Code is
available to a person who is accused, that is
to say, he is facing trial or in respect of
whom
some
investigation
is
being
conducted and during the course of trial or
investigation he is arrested or detained in
custody.

12. It is needless to say that during the
course of investigation or trial, as the
investigation
or
trial
proceeds,
the
circumstances
keep
on
changing
on
discovery of evidence during the course of
investigation and adducing of evidence
during the course of trial. Accordingly, I
find it safe to conclude that under section
439
of
the
Code,
successive
bail
applications would be permissible to be
moved even after rejection of the earlier
bail application for the reason that situation
during the course of investigation and trial
keep on changing depending on the
discovery/exploration
of
evidence
or
adducing the evidence.

13. However, so far as the power
conferred on the appellate court under
section 489 of the Code is concerned, it is
available to the appellate court only on an
appeal which may be filed by a convicted
person. If a judgment and order of
conviction and sentencing passed by a trial
court is challenged before the higher Court,
that is, appellate court, a very significant
change
takes
place
so
far
as
the
presumption of innocence of an accused or
the doctrine of "innocent unless proved
guilty" is concerned. Before the appellate
court the presumption of innocence is not
available. The person approaching the
appellate court challenges the judgment and
order of conviction and sentencing whereby
after conclusion of trial court the appellant
has already been held to be guilty. During
the pendency of appeal, ordinarily, the
circumstances do not change for the reason
that the evidence and other circumstances
which are available at the time of filing of
the appeal against the judgment and order
of conviction and sentencing remain the
same throughout the pendency of appeal.
Accordingly,
moving
successive
bail
applications, where earlier application has
been rejected on merits in pending appeal,
under section 389 of the Code would not be
permissible for the reason that in case
successive bail applications are heard, such
hearing may amount to review of the earlier
order whereby the prayer for bail moved by
the same appellant stands rejected on
merits.
Such
review
in
criminal
proceedings is not legally permissible.

14. However, having observed as
above, it is not that subsequent bail
application would not be permissible to be
heard
in
pending
appeal
in
any
circumstance. There may be situations,
which may call upon the appellate court to
hear subsequent bail application even after
rejection of the earlier application for bail
on merit. Some of such circumstances are
(i) when the bail is sought on the ground of
serious ailment, (ii) on the ground of very
very advanced age, (iii) on the ground of
some mental or physical infirmity suffered
by the appellant during his incarceration,
(iv) long incarceration (v) on the ground
that substantial period of imprisonment has
already been undergone by the appellantconvict and (vi) on the ground of long
8 All. Satya Prakash & Anr. Vs. State of U.P.
219
incarceration where there is no likelihood
of the appeal being heard finally in near
future. These are some of the circumstances
where successive prayers for bail can be
entertained by the appellate court. The
circumstances
given
here
are
not
exhaustive; rather these are illustrative.

15. For the aforesaid reasons as also for
the reason that the order passed disposing of
an application for bail is an interlocutory order,
in the opinion of the Court under certain
circumstances the successive bail applications
in the pending appeal can be considered,
however, the scope of entertaining successive
bail applications in the pending appeal is
extremely narrow. At this juncture, a Division
bench of this Court in the case of Girand
Singh vs. State of U.P., reported in [2010 (2)
ACR 1362] needs to be referred to. Paras 6 to
13 of the aforesaid judgment in the case of
Girand Singh (supra) are relevant, which are
extracted herein below:

"6. Sri Karuna Nand Bajpai,
learned Additional Government Advocate,
has rebutted the arguments raised by the
learned Counsel for the appellant accused
and submitted that it is not permissible
under law to allow second bail application
on any ground, which is not fresh or new.
The grounds, which existed at the time of
the rejection of the first bail application can
not be treated to be fresh grounds at all.
According to him, when the Court on a
former occasion has already considered the
bail matter on merits and has found no
prima face case in favour of the accused,
there is no question now to reconsider the
point of bail on the same ground for that
will simply amount to "review or recall of
the first order". Criminal Procedure Code
does not give any such power to the
Criminal Courts.

7. According to him, second bail
application can be entertained or allowed
only in case the factual situation or the
position of law changes in such a manner
that it may invalidate the former order of
rejection or may justify the grant of bail in
the light of the change of factual or legal
situation. He submits that a new ground
on merits does not mean an argument
raised by a new Counsel or an argument
by same Counsel on a subsequent
occasion, which could not be argued on
earlier occasion. When the Court goes
through the record and hears both the
parties and passes a judgment on merit, it
is deemed to have gone through all the
relevant aspects of the case. Otherwise,
there can not be any discipline, check or
end in moving fresh bail application every
second day on the ground that one or the
other point could not be argued. It is
stated by him that the bail orders by their
very nature are not supposed to be very
lengthy and it is not always possible for
the Courts to write in bail orders all what
they have seen in the record and
considered even though the Counsel might
have argued and referred to it. Therefore,
a speaking reasoned order is the only
requirement of law which has been done
in the present case earlier. The Court on
consideration found no case in favour of
the appellant and rejected the prayer for
bail on merits. The learned AGA has
placed further reliance upon judgment of
the Division Bench reported in Satya Pal
vs. State of U.P. [1999 Cr.L.J 3709]. In
this case the following question was
referred by a learned Single Judge to be
decided by a 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
220 INDIAN LAW REPORTS ALLAHABAD SERIES
accused while the first bail application
was moved and rejected?"

8. This above question of law
was referred to the Division Bench for the
view taken in the case of Gama vs. State of
U.P. [1978 Cr.L.J. 242], was thus:--

"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 can not 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."

9. On the reference, the Division
Bench after hearing and considering all
the relevant laws on this point, overruled
the view taken by the learned Single Judge
in Gama vs. State of U.P. (supra) holding
that--

"Fresh arguments in the 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."

10. The learned AGA, then
submitted
that,
all
the
arguments
advanced on behalf of the appellant
regarding reconsideration of the merits of
the case will be completely impermissible
in the light of the above mentioned view of
Division Bench in Satya Pal's case.

11. We find force in the
argument of learned AGA and do not find
any justification to rehear and reconsider
the arguments on second bail application
on same facts once again even when they
have already been heard and rejected on
the former occasion by this Court.

12. We also get fortified in our
view by another case cited by the learned
A.G.A, State of Mahrashtra vs. Captain
Buddhilota Subha Rao [AIR 1989 SC
2292]. In this case the High Court of
Maharashtra had allowed the second bail
application after the first bail application
had already been rejected. The Hon'ble
Apex Court set aside the order of granting
second bail and observed that--

"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."

Again it has been observed that--

"It
will
also
result
in
consistency. In this view that we take we
are fortified by the observations of this
Court in paragraph 5 of the judgment in
Shahzad Hasan Khan vs. Ishtiaq Hasan
Khan [(1987) 2 SCC 684: AIR 1987 SC
1613] . 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
fact-situation."

13. Learned Counsel for the
appellant has tried to distinguish Satya
Pal's case (supra) on the ground that the
same did not consider the scope of second
bail application during the pendency of
appeal after conviction. According to him,
Satya Pal's case is an authority only in the
matters relating to under trial. We see no
force in this argument. It is true that in
Satya Pal's case the question and scope of
second bail was not specifically decided by
the Court but this is because of the
accepted practice of this Court which
confines the Courts only to adjudicate and
answer the questions of law, which have
been
directly
referred
to
them.
8 All. Satya Prakash & Anr. Vs. State of U.P.
221
Hypothetical questions are not entertained
by the Court which sit specifically to
decide some referred question of law. But
the reasoning and rationale given and
adopted in Satya Pal's case will directly
apply to the second bail applications of
convicted accused also and there is no
justification to adopt a different approach
for convicted accused-appellant. In fact,
the
scope
of
moving
second
bail
application is much more for under trials
as during the process of the trial one bail
application may be rejected at one stage
but after its rejection if some evidence is
recorded, which is of such a nature that it
demolishes the grounds on the basis of
which the first bail application was
rejected then the accused can have a right
to be released on bail. This scope gets
extremely constricted after the trial is over
and the accused is convicted. There is no
scope of change in the nature of evidence
after conviction. But this constriction of
scope to get the second bail on new
grounds after conviction can not become a
justification to reinvent merits in the
arguments which had already been
rejected on the former occasion as meritless."

16. In the case of Girand Singh (supra)
the Division Bench referred to a judgment of
this Court in the case of Satya Pal vs. State of
U.P. reported in [1999 Cr.L.J. 3709] and
opined that though the said judgment in the
case of Satya Pal (supra) relates to the scope
of second bail application in the matters
relating to under trials, however, the
reasoning and rationale given and adopted in
the case of Satya Pal (supra) will directly
apply to the second bail application of a
convict in pending appeal.

17. In view of the discussions made
above, indefeasible inference which can be
drawn is that though successive bail
applications in pending criminal appeal
would
be
maintainable
in
certain
circumstances, however, the scope of such
successive bail applications is extremely
constricted. The other inference which can
safely be drawn is that the presumption of
"innocence unless proved guilty" gets lost
while hearing a prayer for grant of bail in
an appeal filed by a person convicted for an
offence by the trial court.

18. Shri R. P. Misra, learned
counsel appearing for the appellants has
submitted that the appellants are in jail
since 01.12.2012 and hearing of the
appeal is not possible in near future, as
such they are entitled to be released on
bail. He has further submitted that right
to speedy justice would include speedy
hearing of appeal against the judgment
and order of conviction and sentencing,
which is a fundamental right emanating
from Article 21 of the Constitution of
India and since the appellants have
already
been
subjected
to
long
incarceration for a period of about 9 years
and 6 months and there is no chance of
the appeal being heard in near future,
they ought to be released on bail.

19. No doubt, speedy justice, which
includes early hearing of an appeal against
the judgment and order of conviction, is a
very valuable right enshrined under Article
21 of the Constitution of India, however,
prolonged detention in itself cannot be the
sole ground of seeking bail by the convicts
in pending appeal. For seeking bail even in
criminal appeal the appellant needs to
establish a prima facie case in his favour to
demonstrate that there exists a reasonable
prospect of his acquittal in the appeal
showing serious infirmity in the judgment
of conviction.
222 INDIAN LAW REPORTS ALLAHABAD SERIES

20. In these appeals, the first bail
application moved by the appellants was
already rejected by a Division Bench of this
Court on 06.08.2013 wherein opinion was
expressed by the Division Bench that on
going through the judgment and record of
the learned trial court and other material
including the post-mortem report, statement
of witnesses which included two injured
witnesses, no valid and good ground was
found to release the appellants on bail.
Thus, the prayer for bail was rejected on
merits. In view of rejection of prayer for
bail by the Division Bench on 06.08.2013,
what remains to be seen by this Court in the
second bail application is as to whether
incarceration of the appellants for a period
of 9 years and 6 months itself, entitles them
to be released on bail. This, in fact, is the
main ground urged by the learned counsel
appearing for the appellants while pressing
these second bail applications. It is true that
detention of the appellants for a period of 9
years and 6 months is a long period,
however,
as
observed
above,
long
incarceration in itself can not be a ground
for entitling the appellants to be released on
bail.

21. The appellants having been
convicted by the learned trial court cannot
be considered to be innocent and further it
is also to be noticed that they have been
convicted and sentenced for imprisonment
for life. Dealing with the scope of the
power of suspension of sentence and
release of appellant on bail in pending
appeal under section 389 of the Code,
Hon'ble Supreme Court in the case of
Sidhartha Vashisht alias Manu Sharma
vs. State (NCT of Delhi), reported in
[(2008) 5 SCC 230] has observed that if a
person has been convicted, he cannot be
said to be an "innocent person" unless the
final decision of acquittal is recorded by the
superior Court in his favour. It has also
been observed that the appellate court shall
proceed on the basis that a person filing the
appeal against the judgment and order of
conviction and sentencing is guilty. Hon'ble
Apex Court has also observed that it is no
doubt true that even thereafter, it is open to
the appellate Court to suspend the sentence
in a given case by recording reasons. But it
is equally well settled that in considering
the prayer for bail in a case involving a
serious offence like murder punishable
under section 302 of I.P.C., the Court
should consider all the relevant factors such
as nature of accusation, the manner in
which crime is said to have been
committed, the gravity of offence and
desirability of releasing the accused on bail
after he has been convicted for committing
serious offence of murder.

22. In the instant case, it is noticeable
that the learned trial court has recorded a
finding that P.W.1- Pradeep Kumar, P.W.2Laxmi Narain and P.W.3-Smt. Premwati
have described the incident in vivid details
without any material contradictions and
further that these prosecution witnesses
have successfully stood the test during their
cross-examination. The learned trial court
has also repealled the ground taken by the
defence relating to alleged contradiction in
the post-mortem report and the medical
examination report. The Court has found
existence of adequate evidence to prove
that on account of surgical intervention on
the injuries of the deceased Ram Bahadur
the difference in the size of the injuries
described in the medical report and the
post-mortem report is not material for the
reason that the deceased Ram Bahadur was
given stitches on his wound. In this view a
finding has been returned by the learned
trial court that the postmortem report does
not belie the medical examination report
8 All. Sarvjeet @ Shashi Kapoor Vs. State of U.P.
223
which was conducted on the person of the
deceased before he was referred for
treatment
to
the
Medical
College,
Lucknow.

23. On overall consideration of the
entire facts and circumstances of the case as
also in the light of the discussion made herein
above, I do not find it a case fit for granting
bail the appellants, Anil, S/o Satya Prakash
and Sunil Kumar, S/o Satya Prakash. The
prayer for bail is, thus, rejected.

24. However, hearing of the appeals is
expedited. Office is, thus, directed to prepare
the paper book within four weeks.

25. List the appeals for hearing in the
week commencing 13th September, 2021.
----------
(2021)08ILR A223
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.08.2021

BEFORE

THE HON'BLE ANIL KUMAR OJHA, J.

Criminal Appeal No. 2823 of 2015

Sarvjeet @ Shashi Kapoor
 ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Rishi Kant Rai, Sri Neeraj Kumar
Pandey, Sri Shyamu Shukla, Sri Vinod
Kumar Rai

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

Evidence Law - Indian Evidence Act-
1872- Section 3- On careful examination
of evidence of P.W.-2 Premsheela and
P.W.-3 victim, it is held that their evidence
is reliable and trustworthy. Evidence of
P.W.-2 Premsheela and P.W.-3 victim
cannot be discarded merely on the ground
that they are related to each other and
interested
witnesses-Prosecution
case
cannot be doubted on the ground of non
examination of independent witnessesThere is corroboration of oral evidence of
P.W.-3 victim with medical evidence.

It is settled law that where the evidence of the
witnesses is credible and trustworthy and is
corroborated by the medical evidence, then the
case of the prosecution cannot be doubted
merely on the ground that the witnesses are
related and no independent witnesses have
been examined.

From the evidence on file, it is established
beyond reasonable doubt that appellant
Sarvjeet @ Shashi Kapoor committed rape
with a girl aged about 7 to 8 years by
putting cloth in her mouth. Perpetrator of
such a heinous and gruesome crime
deserves no leniency. Taking lenient view
with such an offender would be miscarriage of justice.

The Court cannot adopt a lenient view on the
question of sentence where the offence is grave
and heinous in nature. ( Para 12, 13, 14, 15,
16, 17)

Criminal Appeal rejected. (E-2)

Judgements/ Case law relied upon:-

1. Dahari & ors. Vs St. of U.P. AIR (2012) 10
SCC 256

2. Bhagwan Jagannath Markad Vs St. of Maha.,
(2016) 10 SCC 537

3. Sadhu Saran Singh Vs St. of U.P. & ors.
(2016) 4 SCC 357

4. Mukesh Vs St. for NCT of Dehli & ors. AIR
2017 SC 2161

5. Bhagwan Jagannath Markad Vs St. of Maha.,
(2016) 10 SCC 537