Legally Bharat

Himachal Pradesh High Court

Suraj Kumar vs State Of Himachal Pradesh on 16 September, 2024

Neutral Citation No. ( 2024:HHC:8603 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP (M) No. 1504 of 2024

.

                                              Reserved on: 23.08.2024





                                              Date of Decision: 16.09.2024





    Suraj Kumar                                                                  ...Petitioner
                                           Versus

    State of Himachal Pradesh                                                    ...Respondent

    Coram


Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?1 No

For the Petitioner : Ms. Kanta Thakur, Advocate.
For the Respondent : Mr. Lokender Kutlehria, Additional
Advocate General.

Rakesh Kainthla, Judge

The petitioner has filed the present petition for

seeking regular bail. It has been asserted that the petitioner was

arrested by the police of Police Station Patlikuhal, District Kullu,

on 10.02.2022 for the commission of an offence punishable

under Section 20 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (in short ‘NDPS Act’) vide FIR No. 14 of

2022, dated 10.02.2022 for the possession of 1.354 Kgs of charas.

As per the prosecution, the Special Investigation Unit, Kullu

1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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received a secret information that the petitioner was going to

deliver charas to someone near the grocery shop at village

.

Pararhi. The police associated two independent witnesses and

noticed the petitioner with a backpack at about 4:30 pm. The

police stopped the petitioner, searched his backpack and

recovered 1.354 Kgs of Charas. The investigation has been

completed. The charge sheet has been filed before the Court. The

petitioner has been in judicial custody for more than two years

and four months. There is an inordinate delay in the trial. The

material witnesses have been examined and the petitioner is not

in a position to influence the witnesses; therefore, it was prayed

that the present petition be allowed and the petitioner be

released on bail.

2. The petition is opposed by filing a status report

asserting that the police party was on patrolling duty on

10.02.2022 when a secret information was received that the

petitioner would bring the charas and hand it over to someone

near the Pari Karyana Store. The Police associated two

independent witnesses and sent the information to the Superior

Officer after reducing it into writing. The police waited for the

petitioner and found him at about 4:30 pm. He was carrying a

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backpack. The police apprehended him and checked his

backpack. The police recovered 1.354 Kgs of charas. Police

.

arrested the petitioner and seized the charas. As per the report

of analysis, the charas had 31.54% w/w resin in it. The challan

was filed and presented before the Court on 05.04.2022. 10

witnesses out of 18 have been examined and three have been

given up. The matter is now listed for recording the statement of

the witnesses at Sr. Nos.7 and 15 on 12.09.2024. The petitioner

was found in possession of the commercial quantity of the

charas; therefore, it was prayed that the present petition be

dismissed.

3. I have heard Ms. Kanta Thakur, learned counsel for

the petitioner and Mr. Lokender Kutlehria, learned Additional

Advocate General, for the respondent/State.

4. Ms Kanta Thakur, learned counsel for the petitioner

submitted that the petitioner is innocent and he was falsely

implicated. He has been in custody for more than two years and

four months. His trial has not been concluded and his right to a

speedy trial is being violated; therefore, she prayed that the

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present petition be allowed and the petitioner be released on

bail.

.

5. Mr. Lokender Kutlehria, learned Additional Advocate

General for the respondent/State submitted that the petitioner

was found in possession of a commercial quantity of charas. The

rigours of Section 37 of the NDPS Act apply to the present case.

The prosecution has examined ten witnesses, three have been

given up and only five witnesses are to be examined. There is no

delay in the trial; therefore, he prayed that the present petition

be dismissed.

6. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

7. The parameters for granting bail were considered by

the Hon’ble Supreme Court in Bhagwan Singh v. Dilip Kumar @

Deepu @ Depak, 2023 SCC OnLine SC 1059, wherein it was

observed as under: –

“12. The grant of bail is a discretionary relief which nec-
essarily means that such discretion would have to be ex-
ercised in a judicious manner and not as a matter of
course. The grant of bail is dependent upon contextual
facts of the matter being dealt with by the Court and may
vary from case to case. There cannot be any exhaustive

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parameters set out for considering the application for a
grant of bail. However, it can be noted that;

(a) While granting bail the court has to keep in

.

mind factors such as the nature of accusations,

severity of the punishment, if the accusations entail
a conviction and the nature of evidence in support
of the accusations;

(b) reasonable apprehensions of the witnesses be-
ing tampered with or the apprehension of there be-
ing a threat for the complainant should also weigh
with the Court in the matter of grant of bail.

(c) While it is not accepted to have the entire evi-
dence establishing the guilt of the accused beyond
reasonable doubt but there ought to be always a

prima facie satisfaction of the Court in support of

the charge.

(d) Frivolity of prosecution should always be con-
sidered and it is only the element of genuineness
that shall have to be considered in the matter of

grant of bail and in the event of there being some
doubt as to the genuineness of the prosecution, in
the normal course of events, the accused is entitled

to have an order of bail.

13. We may also profitably refer to a decision of this Court
in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Ya-
dav (2004) 7 SCC 528 where the parameters to be taken

into consideration for the grant of bail by the Courts has
been explained in the following words:

“11. The law in regard to grant or refusal of bail is
very well settled. The court granting bail should ex-
ercise its discretion in a judicious manner and not
as a matter of course. Though at the stage of grant-
ing bail a detailed examination of evidence and
elaborate documentation of the merit of the case
need not be undertaken, there is a need to indicate
in such orders reasons for prima facie concluding
why bail was being granted particularly where the

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accused is charged of having committed a serious
offence. Any order devoid of such reasons would
suffer from non-application of mind. It is also nec-

.

essary for the court granting bail to consider among

other circumstances, the following factors also be-
fore granting bail; they are:

(a) The nature of accusation and the severity of

punishment in case of conviction and the nature of
supporting evidence.

(b) Reasonable apprehension of tampering with the
witness or apprehension of threat to the com-

plainant.

(c) Prima facie satisfaction of the court in support
of the charge. (See Ram Govind Upadhyay v. Sudar-

shan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688]

and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC
(Cri) 1124].)”

8. A similar view was taken in State of Haryana vs

Dharamraj 2023 SCC Online 1085, wherein it was observed:

7. A foray, albeit brief, into relevant precedents is
warranted. This Court considered the factors to guide the

grant of bail in Ram Govind Upadhyay v. Sudarshan
Singh, (2002) 3 SCC 598 and Kalyan Chandra
Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528. In Prasanta

Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the
relevant principles were restated thus:

‘9. … It is trite that this Court does not, normally, interfere
with an order passed by the High Court granting or
rejecting bail to the accused. However, it is equally
incumbent upon the High Court to exercise its discretion
judiciously, cautiously and strictly in compliance with the
basic principles laid down in a plethora of decisions of
this Court on the point. It is well settled that, among other

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circumstances, the factors to be borne in mind while
considering an application for bail are:

(i) whether there is any prima facie or reasonable

.

ground to believe that the accused had committed

the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of
conviction;

(iv) danger of the accused absconding or fleeing, if
released on bail;

r to

(v) character, behaviour, means, position and
standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses
being influenced; and

(viii) danger, of course, of justice being thwarted
by grant of bail.’

9. The status report shows that the police apprehended

the petitioner with a backpack containing 1.354 Kgs of charas.

The charas were sent to FSL and as per the result of the analysis,

it had 31.54% w/w resin in it. 1.354 Kgs of charas falls within the

definition of the commercial quantity and the rigours of Section

34 of the NDPS Act apply to the present case.

10. Section 37 of the NDPS Act provides that in an

offence involving commercial quantity, the Court should be

satisfied that the accused is not guilty of the commission of an

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offence and is not likely to commit any offence while on bail.

Section 37 of the NDPS Act reads as under:

.

“37. Offences are to be cognizable and non-bailable. – (1)
Notwithstanding anything contained in the Code of Crim-
inal Procedure, 1973 (2 of 1974)–

(a) every offence punishable under this Act shall be
cognizable;

(b) no person accused of an offence punishable for

offences under section 19 section 24 or section 27A
and also for offences involving commercial quan-

tity shall be released on bail or his own bond un-
less-

(i) the Public Prosecutor has been given an

opportunity to oppose the application for
such release, and

(ii) where the Public Prosecutor opposes the

application, the court is satisfied that there
are reasonable grounds for believing that he
is not guilty of such an offence and that he is
not likely to commit any offence while on

bail.

(2) The limitations on granting of bail specified in
clause (b) of sub-section (1) are in addition to the
limitations under the Code of Criminal Procedure,

1973 (2 of 1974) or any other law for the time being
in force, on granting of bail.”

11. This Section was interpreted by the Hon’ble Supreme

Court in Union of India Versus Niyazuddin & Another (2018) 13 SCC

738 and it was held that in the absence of the satisfaction that

the accused is not guilty of an offence and he is not likely to

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commit an offence while on bail, he cannot be released on bail.

It was observed:

.

“7. Section 37 of the NDPS Act contains special provisions
with regard to the grant of bail in respect of certain of-
fences enumerated under the said Section. They are :

(1) In the case of a person accused of an offence
punishable under Section 19,
(2) Under Section 24,

(3) Under Section 27A and
(4) Of offences involving commercial quantity.

8. The accusation in the present case is with regard to the

fourth factor namely, commercial quantity. Be that as it

may, once the Public Prosecutor opposes the application
for bail to a person accused of the enumerated offences
under Section 37 of the NDPS Act, in case, the court pro-

poses to grant bail to such a person, two conditions are to

be mandatorily satisfied in addition to the normal re-
quirements under the provisions of the Cr.P.C. or any
other enactment.

(1) The court must be satisfied that there are reason-

able grounds for believing that the person is not

guilty of such offence;

(2) that person is not likely to commit any offence

while on bail.”

12. This position was reiterated in State of Kerala Versus

Rajesh AIR 2020 SC 721 wherein it was held:

“19. This Court has laid down broad parameters to be fol-
lowed while considering the application for bail moved by
the accused involved in offences under the NDPS Act. In
Union of India vs. Ram Samujh and Ors., (1999) 9 SCC 429, it
has been elaborated as under:-

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“7. It is to be borne in mind that the aforesaid leg-

islative mandate is required to be adhered to and
followed. It should be borne in mind that in a mur-

.

der case, the accused commits the murder of one or

two persons, while those persons who are dealing in
narcotic drugs are instrumental in causing death or
in inflicting death-blow to a number of innocent

young victims, who are vulnerable; it causes delete-
rious effects and a deadly impact on the society;
they are a hazard to the society; even if they are re-
leased temporarily, in all probability, they would

continue their nefarious activities of trafficking
and/or dealing in intoxicants clandestinely. The
reason may be the large stake and illegal profit in-
volved. This Court, dealing with the contention with

regard to punishment under the NDPS Act, has suc-

cinctly observed about the adverse effect of such
activities in Durand Didier vs. Chief Secy., Union Ter-
ritory of Goa, (1990) 1 SCC 95) as under:

24. With deep concern, we may point out that

the organised activities of the underworld and
the clandestine smuggling of narcotic drugs
and psychotropic substances into this country

and illegal trafficking in such drugs and sub-

stances have led to drug addiction among a

sizeable section of the public, particularly the
adolescents and students of both sexes and

the menace has assumed serious and alarm-
ing proportions in the recent years. There-
fore, in order to effectively control and eradi-
cate this proliferating and booming devastat-
ing menace, causing deleterious effects and
deadly impact on the society as a whole, Par-
liament in its wisdom, has made effective
provisions by introducing Act 81 of 1985
specifying mandatory minimum imprison-
ment and fine.

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8. To check the menace of dangerous drugs flooding
the market, Parliament has provided that the per-
son accused of offences under the NDPS Act should

.

not be released on bail during trial unless the

mandatory conditions provided in Section 37,
namely,

(i) there are reasonable grounds for believ-

ing that the accused is not guilty of such of-
fence; and

(ii) that he is not likely to commit any of-
fence while on bail are satisfied. The High

Court has not given any justifiable reason for
not abiding by the aforesaid mandate while
ordering the release of the respondent ac-
r cused on bail. Instead of attempting to take a
holistic view of the harmful socio-economic

consequences and health hazards which
would accompany trafficking illegally in
dangerous drugs, the court should imple-

ment the law in the spirit with which Parlia-
ment, after due deliberation, has amended.”

20. The scheme of Section 37 reveals that the exercise of

power to grant bail is not only subject to the limitations
contained under Section 439 of the CrPC but is also sub-

ject to the limitation placed by Section 37 which com-
mences with the non-obstante clause. The operative part
of the said section is in the negative form prescribing the

enlargement of bail to any person accused of commission
of an offence under the Act unless twin conditions are
satisfied. The first condition is that the prosecution must
be given an opportunity to oppose the application, and the
second is that the Court must be satisfied that there are
reasonable grounds for believing that he is not guilty of
such an offence. If either of these two conditions is not
satisfied, the ban for granting bail operates.

21. The expression “reasonable grounds” means some-
thing more than prima facie grounds. It contemplates

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substantial probable causes for believing that the accused
is not guilty of the alleged offence. The reasonable belief
contemplated in the provision requires the existence of

.

such facts and circumstances as are sufficient in them-

selves to justify satisfaction that the accused is not guilty
of the alleged offence. In the case on hand, the High Court
seems to have completely overlooked the underlying ob-

ject of Section 37 that in addition to the limitations pro-
vided under the CrPC, or any other law for the time being
in force, regulating the grant of bail, its liberal approach
in the matter of bail under the NDPS Act is indeed un-

called for.”

13. A similar view was taken in Union of India v. Mohd.

Nawaz Khan, (2021) 10 SCC 100: (2021) 3 SCC (Cri) 721: 2021 SCC

OnLine SC 1237 wherein it was observed at page 110:

“21. Under Section 37(1)(b)(ii), the limitations on the
grant of bail for offences punishable under Sections 19, 24

or 27-A and also for offences involving a commercial
quantity are:

(i) The Prosecutor must be given an opportunity to
oppose the application for bail; and

(ii) There must exist “reasonable grounds to
believe” that : (a) the person is not guilty of such an
offence; and (b) he is not likely to commit any

offence while on bail.

22. The standard prescribed for the grant of bail is
“reasonable ground to believe” that the person
is not guilty of the offence. Interpreting the standard of
“reasonable grounds to believe”, a two-judge Bench of
this Court in Shiv Shanker Kesari [Union of India v. Shiv
Shanker Kesari, (2007) 7 SCC 798 : (2007) 3 SCC (Cri) 505],
held that : (SCC pp. 801-02, paras 7-8 & 10-11)
“7. The expression used in Section 37(1)(b)(ii) is
“reasonable grounds”. The expression means

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something more than prima facie grounds. It connotes
substantial probable causes for believing that the
accused is not guilty of the offence charged and this

.

reasonable belief contemplated in turn points to the

existence of such facts and circumstances as are
sufficient in themselves to justify the recording of
satisfaction that the accused is not guilty of the offence

charged.

8. The word “reasonable” has in law the prima facie
meaning of reasonable in regard to those
circumstances of which the actor, called on to act

reasonably, knows or ought to know. It is difficult
to give an exact definition of the word
“reasonable”.

‘7. … Stroud’s Judicial Dictionary, 4th Edn., p. 2258
states that it would be unreasonable to expect an

exact definition of the word “reasonable”. Reason
varies in its conclusions according to the
idiosyncrasy of the individual, and the times and

circumstances in which he thinks. The reasoning
which built up the old scholastic logic sounds now
like the jingling of a child’s toy.’

[See MCD v. Jagan Nath Ashok Kumar [MCD v. Jagan
Nath Ashok Kumar, (1987) 4 SCC 497], SCC p. 504,

para 7 and Gujarat Water Supply & Sewerage
Board v. Unique Erectors (Gujarat) (P) Ltd. [Gujarat
Water Supply & Sewerage Board v. Unique Erectors

(Gujarat) (P) Ltd., (1989) 1 SCC 532] ]
***

10. The word “reasonable” signifies “in accordance
with reason”. In the ultimate analysis, it is a
question of fact, whether a particular act is
reasonable or not depends on the circumstances in
a given situation. (See Municipal Corpn. of Greater
Mumbai v. Kamla Mills Ltd. [Municipal Corpn. of
Greater Mumbai v. Kamla Mills Ltd. (2003) 6 SCC 315]

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11. The court while considering the application for
bail with reference to Section 37 of the Act is not
called upon to record a finding of not guilty. It is for

.

the limited purpose essentially confined to the

question of releasing the accused on bail that the
court is called upon to see if there are reasonable
grounds for believing that the accused is not guilty

and records its satisfaction about the existence of
such grounds. But the court has not to consider the
matter as if it is pronouncing a judgment of
acquittal and recording a finding of not guilty.”

(emphasis supplied)

23. Based on the above precedent, the test which the High
Court and this Court are required to apply while granting

bail is whether there are reasonable grounds to believe
that the accused has not committed an offence and

whether he is likely to commit any offence while on bail.
Given the seriousness of offences punishable under the
NDPS Act and in order to curb the menace of drug

trafficking in the country, stringent parameters for the
grant of bail under the NDPS Act have been prescribed.”

14. In the present case, there is no material to show that

the petitioner has not committed the offence punishable under

Section 20(b)(ii)(c) of the NDPS Act; rather the material on

record clearly shows that the petitioner was found in possession

of the commercial quantity of Charas. Hence, the petitioner is

not entitled to bail in view of the rigours of Section 37 of the

NDPS Act.

15. It was submitted that there is a delay in the progress

of the trial and the right of speedy trial of the petitioner is being

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violated. The petitioner has relied upon the copies of order

sheets dated 13.10.2023, 23.02.2024, and 09.04.2024. The order

.

sheet dated 09.04.2024 reads that the last opportunity was

granted to the prosecution to produce the witnesses at Sr. Nos. 4,

5, 15 and 16. Now the matter is listed for 12.09.2024 for recording

the statements of the witnesses at Sr. Nos. 7 and 15. These order

sheets do not show that there is any delay in conducting the trial

and the petitioner cannot be held entitled to bail on the ground

that his right to speedy trial is being violated.

16. A perusal of the record further shows that the

petitioner had filed a bail petition i.e. Cr.MP(M) No. 2844 of 2023

titled Suraj Kumar@Janu vs. State of H.P., which was dismissed

on 08.12.2023 on the ground that the petitioner was found in

possession of a commercial quantity of charas. He was not able

to satisfy the twin conditions laid down under Section 37 of the

NDPS Act. These circumstances have not changed. It was held in

the State of Maharashtra Vs. Captain Buddhikota Subha Rao (1989)

Suppl. 2 SCC 605 that once a bail application has been dismissed,

subsequent bail application can only be considered if there is a

change of circumstances. It was observed:

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“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.

17. Similar is the judgment delivered in State of M.P. v.

Kajad, (2001) 7 SCC 673, wherein it was observed: –

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 a 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.

18. Similarly, it was held in Kalyan Chandra Sarkar Vs.

Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 that where an

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earlier bail application has been rejected, the Court has to

consider the rejection of the earlier bail application and then

.

consider why the subsequent bail application should be allowed.

It was held:

“11. In regard to cases where earlier bail applications have
been rejected there is a further onus on the court to consider
the subsequent application for grant of bail by noticing the
grounds on which earlier bail applications have been

rejected and after such consideration, if the court is of the
opinion that bail has to be granted then the said court will
have to give specific reasons why in spite of such earlier

rejection the subsequent bail application should be
granted.”

19. A similar view was taken in State of T.N. v. S.A. Raja,

(2005) 8 SCC 380, wherein it was observed:

9. When a learned Single Judge of the same court had denied
bail to the respondent for certain reasons and that order was

unsuccessfully challenged before the appellate forum,
without there being any major change of circumstances,

another fresh application should not have been dealt with
within a short span of time unless there were valid grounds
giving rise to a tenable case for bail. Of course, the principles

of res judicata are not applicable to bail applications, but the
repeated filing of bail applications without there being any
change of circumstances would lead to bad precedents.

20. This position was reiterated in Prasad Shrikant

Purohit v. State of Maharashtra, (2018) 11 SCC 458, wherein it was

observed:

30. Before concluding, we must note that though an accused
has a right to make successive applications for grant of bail,

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the court entertaining such subsequent bail applications has
a duty to consider the reasons and grounds on which the
earlier bail applications were rejected. In such cases, the
court also has a duty to record the fresh grounds which

.

persuade it to take a view different from the one taken in the

earlier applications.

21. It was held in Ajay Rajaram Hinge v. State of

Maharashtra, 2023 SCC OnLine Bom 1551 that successive bail

application can be filed if there is a material change in the

circumstance, which means the change in the facts or the law. It

was observed:

7. It needs to be noted that the right to file successive bail
applications accrues to the applicant only on the existence
of a material change in circumstances. The sine qua non for
filing subsequent bail applications is a material change in

circumstance. A material change in circumstances settled by
law is a change in the fact situation or law which requires
the earlier view to be interfered with or where the earlier

finding has become obsolete. However, change in
circumstance has no bearing on the salutatory principle of

judicial propriety that successive bail application needs to be
decided by the same Judge on merits, if available at the place
of sitting. There needs to be clarity between the power of a

judge to consider the application and a person’s right based
on a material change in circumstances. A material change in
circumstance creates in a person accused of an offence the
right to file a fresh bail application. But the power to decide
such subsequent application operates in a completely
different sphere unconnected with the facts of a case. Such
power is based on the well-settled and judicially recognized
principle that if successive bail applications on the same
subject are permitted to be disposed of by different Judges,
there would be conflicting orders, and the litigant would be
pestering every Judge till he gets an order to his liking
resulting in the credibility of the Court and the confidence of

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the other side being put in issue and there would be wastage
of Court’s time and that judicial discipline requires that such
matter must be placed before the same Judge, if he is
available, for orders. The satisfaction of material change in

.

circumstances needs to be adjudicated by the same Judge

who had earlier decided the application. Therefore, the same
Judge needs to adjudicate whether there is a change in
circumstance as claimed by the applicant, which entitles

him to file a subsequent bail application.”

22. Since there is no change in the circumstance,

therefore, the petitioner cannot be held entitled to bail. Hence,

the present petition fails and the same is dismissed.

23. The observation made herein before shall remain

confined to the disposal of the petition and will have no bearing,

whatsoever, on the merits of the case.

(Rakesh Kainthla)

Judge
16th September, 2024

(saurav pathania)

::: Downloaded on – 17/09/2024 20:30:39 :::CIS

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