AI Structured Summary
Not yet generated for this judgment
Judgment
Rakesh Kainthla, J
The petitioner has filed the present petition for seeking regular bail in FIR No. 44 of 2025, dated 12.3.2025, registered at Police Station, West Shimla (Boileauganj), District Shimla, H.P., for the commission of offences punishable under Sections 126(2), 115(2), 117(b), 351(3) and 109 of Bharatiya Nyaya Sanhita, 2023 (BNS).
It has been asserted that, as per the prosecution, the informant saw her husband sitting in the shop of the accused on 28.2.2025 at 6.00 PM. He was bleeding from his head. He disclosed on the informant’s inquiry that the accused had stopped and beaten him with fist blows and a shoe. The accused told the informant that her husband had stolen oil cans from the shop, and she had to pay for the st len il cans. The informant took her husband to her room and got him treated. The complaint was filed on 11.3.2025. The victim was taken to IGMC Hospital after his health deteriorated. The police registered the FIR and arrested the petitioner. The petitioner has been in custody since 11.4.2025. The petitioner’s wife is unable to run the s op because of her old age. The charge sheet has been filed before the Court, and the conclusion of the trial is likely to take some time. The petitioner would abide by the terms and conditions which the Court may impose. The petitioner filed a petition, which was registered as Cr.MP(M) No. 1366 of 2025 and was dismissed as withdrawn on 1.7.2025. Hence, the present petition.
The petition is opposed by filing a status report asserting that the informant made a complaint to the police on 12.2.2024, stating that her husband, Alexander, was working as a labourer. She returned to her home on 28.2.2025, at about 6 00 PM. She found her husband sitting near the petitioner’s shop. The petitioner told the informant that her husband had stolen the oil cans from the shop, and the informant should pay the cost of the oil. She inquired from her husband, who revealed that the petitioner had stopped him near the shop and given him beatings by saying that he (the vic im) had stolen the oil from the petitioner’s shop. The police registered the FIR and investigated the matter. The injured was medically examined and, as per the medical report, the injuries were dangerous to life and the victim could have died in the absence of institutionalised treatment in the hospital. The police arrested the petitioner and interrogated him. The petitioner got the shoe recovered, with which he had beaten the victim. The statement of the victim was recorded by the learned Magistrate. The charge sheet was filed before the Court after the completion of the investigation. Hence, the status report.
I have heard Mr Sanjeev Bhushan, learned Senior Counsel, assisted by Mr Sparsh Bhushan, learned counsel for the petitioner and Mr Lokender Kutlehria, learned Additional Advocate General, for the respondent-State.
Mr Sanjeev Bhushan, learned Senior Counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. There was a delay in reporting the matter to the police, which makes the prosecution’s case suspect. The grounds of arrest were not communicated to the petitioner, and the arrest of the petitioner is illegal. The charge sheet has been filed before the Court, and no fruitful purpose would be served by detaining the petiti ner in custody. Hence, he prayed that the present petition be allowed and the petitioner be released on bail. He relied upon the judgment of the Hon’ble Supreme Court in Rajnish Kumar Rai v. Union of India and others 2023 LiveLaw (SC) 842 in support of his submission.
Mr Lokender Kutlehria, learned Additional Advocate General, for the respondent-State, submitted that the petitioner had earlier filed a bail petition which was dismissed by this Court. A subsequent bail petition only lies when there is a change in the circumstances. The petitioner has not mentioned any change in the circumstances, and the present petition is not maintainable. Hence, he prayed that the present petition be dismissed.
I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
It is undisputed that the petitioner had earlier filed a bail petition, which was registered as Cr.MP(M) No.1032 of 2025 and was dismissed on 25.5.2025. It was held in State of Maharashtra Vs. Captain Buddhiko a Subha Rao (1989) Suppl. 2 SCC 605, that a subseq ent bail application can only be considered if there is a change of circumstances. It was observed:
“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.
Similarly, it was held in Kalyan Chandra Sarkar v Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528, that where an 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, the e is a further onus on the court to consider the s bseq ent application for grant of bail by noticing the gro nds on which earlier bail applications have been rejected and after such consideration, if the court is f the pinion 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.”
A similar view was taken in State of T.N. v. S.A. Raja, (2005) 8 SCC 380, wherein it was observed:
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.
This position was reiterated in Prasad Shrikant Purohit v. State of Maharashtra (2018) 11 SCC 458, wherein it was observed:
Before concluding, we must note that though an accused has a right to make successive applications for the grant of bail, 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 c urt also has a duty to record the fresh grounds which persuade it to take a view different from the one aken in the earlier applications.
It was held in Ajay Rajaram Hinge v. State of Maharashtra, 2023 SCC OnLine Bom 1551, that a successive bail application can be filed if there is a material change in the circumstances, which means a change in the facts or the law. It was observed:
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 circumstances. 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, a change in circumstances has no bearing on the salutary principle of judicial propriety that successive bail application needs to be decided by the same Judge on the 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 a 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 recognised 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 con idence of 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 orde s. The sa isfaction of material change in circumstances needs to be adjudicated by the same Judge who had earlier decided the application. Therefore, the same J dge needs to adjudicate whether there is a change in circumstance as claimed by the applicant, which entitles him to file a subsequent bail application.”
Therefore, the present bail petition can only be considered based on the change in the circumstances, and it is not permissible to review the order passed by the Court.
It was submitted that the grounds of arrest were not communicated to the petitioner, his arrest is illegal, and he is entitled to bail. This submission cannot be accepted. It was laid down by the Division Bench of Allahabad High Court in Shashank Mishra versus State of U.P. and others 2025 SCC Online All 3189 that when the accused had not taken a plea regarding non-communication of the grounds of arrest in the earlier bail petition, it is not permissible to take this plea in the subsequent petitions. It was observed: -
“11. Notwithstanding the above, it is pertinent to note that the petitioner has approached this Court nearly one and a half years after the arrest. During this intervening period, his bail applications were rejected at multiple stages, including by this Court. As such, the instant matter is distinguishable from Manjeet Singh v. State of U.P., 2025 SCC OnLine All 2119 and S achin Soni v. State of U.P. Criminal Misc. WP No. 905 f 2025, dt. 9-4-2025 (All) At no point prior o he present proceedings did the petitioner raise the issue of illegal arrest or violation of his constitutional ights. The legal position laid down in Vihaan Kumar v. State of Haryana, (2025) 5 SCC 799, cannot be stretched to imply that a litigant who remained silent throughout can, at any stage, invoke the extraordinary jurisdiction under Article 226 to challenge his remand. The same is reproduced herein below:
(Vihaan Kumar v. State of Haryana, (2025) 5 SCC 799 SCC pp. 818-819, paras 26-26.6)
“26. Therefore, we conclude:
26.1. The requirement of informing a person arrested of the grounds of arrest is a mandatory requirement of Article 22(1).
26.2. The information on the grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts constituting the grounds is imparted and communicated to the arrested person effectively in the language which he understands. The mode and method of communication must be such that the object of the constitutional safeguard is achieved.
26.3. When arrested accused alleges non-compliance with the requirements of Article 22(1), the burden will always be on the investigating officer/agency to prove compliance with the requirements of Article 22(1);
26.4. Non-compliance with Article 22(1) will be a violation of the fundamental rights of the accused guaranteed by the said Article. Moreover, it will amount to a violation of the right to pers nal liberty guaranteed by Article 21 of the C nstitution. Therefore, non-compliance with the requirements of Article 22(1) vi iates the arrest of the accused. Hence, fu ther orders passed by a criminal co rt of remand are also vitiated. Needless to add that it will not vitiate the investigation, charge-sheet and trial. But, at the same time, the filing of a charge-sheet will not validate a breach of constitutional mandate under Article 22(1);
26.5. When an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) and other mandatory safeguards has been made; and
26.6. When a violation of Article 22(1) is established, it is the duty of the court to forthwith order the release of the accused. That will be a ground to grant bail even if statutory restrictions on the grant of bail exist. The statutory restrictions do not affect the power of the court to grant bail when the violation of Articles 21 and 22 of the Constitution is established.”
In clause (f) of the judgment in Vihaan Kumar v. State of Haryana, (2025) 5 SCC 799, the Supreme Court clearly observed that release on the ground of violation of constitutional rights can be granted only if such violation is brought to the notice of the court by the accused or otherwise. In the case at hand, the record confirms that legal aid was offered to the petitioner, which he declined. He neither challenged his arrest earlier nor made any grievance during bail proceedings. The present petition appears to be a disguised attempt to secure release on grounds that were never taken r agitated before the appropriate forums.
This Court further no es hat entertaining the present writ petition would effec ively amount to nullifying the order passed by a Coo dinate Bench of this Court on 15-4-2024, rejecting the petitioner's bail. Such an action is not legally permissible, as it would amount to reviewing the said order under the guise of fresh relief. The doctrine of merger, as expounded in Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat, (1969) 2 SCC 74: AIR 1970 SC 1, is applicable. The remedy now sought is not distinct but is essentially a reiteration of the relief already denied. The same is extracted as below: (SCC p. 76, para 3)
“3. Now, as is well known, Section 115 of the Civil Procedure Code, 1908, empowers the High Court to call for the record of any case which has been decided by any court subordinate to it and in which no appeal lies to it. It can interfere if the subordinate court appears to have exercised the jurisdiction not vested in it by law or to have failed to exercise the jurisdiction so vested or to have acted in the exercise of its jurisdiction legally or with material illegality. The limits of the jurisdiction of the High Court under this section are well defined by a long course of judicial decisions. If the revisional jurisdiction is invoked and both parties are heard and an order is made, the question is whether the orders of the subordinate court have become merged in the order of the High Court If it has been merged and the order is only of the High Court, the order of the subordinate court cannot be challenged or attacked by another set of proceedings in the High Court, namely, by means of a petition under Article 226 or 227 of the Constitution. It is only if, by dismissal of the revision petition, the order of the subordinate court has not become merged in that of the High Court that it may be open to the party to invoke the extraordinary writ jurisdiction of that court. There again, the ques ion will arise whether it would be right and p oper for the High Court to interfere with an order of a subordinate court in a writ petition when a petition for revision under Secti n 115, CPC, against the same order has been dismissed. Such a consideration will also enter into the exercise of discretion in a petition under Article 225 or 227.”
A perusal of the said judgment is sufficient to cover t is particular matter. Here, the bail application of the petitioner was rejected by the High Court. It is apparent that the grievance of illegal arrest was not raised either before the Sessions Judge or the High Court. The consequences which will follow if this writ petition is allowed were considered by us. Allowing this petition by setting the petitioner at liberty will result in upsetting the earlier order passed by another bench, vide which bail of the petitioner was rejected on merits. It will mean that the custody of the petitioner, which was earlier held legal by another bench, will be reviewed by this Bench after holding that the custody of the petitioner was illegal from the very beginning. Interpretation of what has been held in Vihaan Kumar v. State of Haryana, (2025) 5 SCC 799 and other judgments referred above cannot be stretched so far. Allowing the writ petition will also mean directing the Additional District Court Fast Track to review its earlier order of bail rejection. Doctrine of merger, as held in Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat, (1969) 2 SCC 74: AIR 1970 SC 1, is applicable here also. Bail rejected by the Sessions Judge was also rejected by the High Court. Allowing the writ petition will mean directing the Additional District Judge Fast Track Court to consider the application dated 29-4-2025 and indirectly asking to reconsider the bail application rejected by the High Court.” (emphasis supplied)
Therefore, this plea is n t available to the petitioner during the present proceedings.
It was submitted that the petitioner is innocent and he was falsely implicated. FIR was lodged after a delay, and the possibility of false implication cannot be ruled out. This submission cannot be accepted. This Court had already held, while deciding the earlier bail petition, that there was sufficient material to, prima facie, conclude that the petitioner had committed an offence punishable under Section 109 of BNS. The Court deciding the subsequent bail petition does not sit in review over the earlier order, and it is impermissible to record a contrary finding in the subsequent bail petition.
It was laid down by the Hon’ble Supreme Court in State of M.P. v. Kajad, (2001) 7 SCC 673: 2001 SCC (Cri) 1520: 2001 SCC OnLine SC 1070 that it is impermissible to review the earlier order of bail in the subsequent bail petition, and the Court can only consider the change in circumstances. It was observed at page 676:
“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 resp ndent. 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 nder 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.”
Therefore, the Court cannot go into the validity of the earlier order and hold that no case is made out against the petitioner for the commission of an offence punishable under Section 109 of BNS.
Reliance was placed upon the copy of the OPD slip of the victim; however, this OPD slip does not favour the petitioner and goes against the petitioner. It was specifically mentioned that the victim’s wife had given a history of assault on the victim’s head a few days ago by a shopkeeper at Totu. This prima facie corroborates the version of the victim’s wife that the accused had given beatings to the victim. Thus, not much advantage can be derived from the OPD slip. The judgment of Rajnish Kumar Rai (supra) should not apply to the present case because the plea of non-communication of grounds of arrest is not available to the petitioner in a subsequent bail petition. Thus, no reliance can be placed upon the cited judgment.
No other point was urged.
In view of the above, he present petition fails and the same is dismissed.
The observati ns made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the case's merits.