Result of U.P. Higher Judicial Service (Main Written) Examination, 2014 Direct Recruitment to U.P. Higher Judicial Service held on 14th, 15th and 16th November, 2014 has been declared. High Court of Madhya Pradesh, Jabalpur notified Advertisement for recruitment additional district judges through M.P. Higher Judicial Service (Entry Level) Direct Recruitment for BAR, Exam 2015 Haryana Judicial Services Examination 2014-Pre is conducted on 10th of Jan 2015. The result is awaited. THE HIGH COURT OF DELHI will hold examination for direct recruitment against 14 vacancies to Delhi Higher Judicial Service on Sunday, the 06th April,2014-Last Date 06.02.2014 13/11/2013: While renewing the term of the appointment of the existing incumbents the State Government is required to consider their past performance and conduct in the light of the recommendations made by the District Judges and the District Magistrates. Therefore, the High Court could not have issued a Mandamus for renewal of the term of respondent Nos. 1 and 2 and other similarly situated persons and thereby frustrated the provisions of LR Manual and Section 24 Cr.P.C .- SUPREME COURT.
HIGH COURT JUDGEMENT
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  Date 6/29/2009 12:00:00 AM
  Court Allahabad High Court
  Parties 1.Khursheed 2.MajsadVs. State of U.P.
  Appeal Bails - Criminal Misc. 2nd Bail Application No. 1199 of 2009
  Act Criminal Procedure Code - 439
  Judgement
  Honble Vijay Kumar Verma, J. "Whether the second bail application on the grounds, which were available at the time of dismissal of first bail application is maintainable?", is the main point that falls for consideration in this case, in which second bail has been moved on behalf of the applicants named above in case crime no. 670 of 2008 under section 419, 420, 467, 468 IPC of P.S. Govardhan, District Mathura. 2.The first bail application bearing no. 30292 of 2008 was rejected on merit by another Bench of this Court vide order dated 11.11.2008. 3.Shorn of unnecessary details, the case of the prosecution, as appearing from the first information report lodged on 19.09.2008 by the complainant Gurwant Sharma s/o Bharu Lal, resident of Village Bhadbhadia, Tehsil and District Neemamb (Madhya Pradesh), is that the accused Pappu @ Khursheed (applicant no. 1 herein) and Zakir s/o Shamshuddin defrauded and cheated the complainant on 11.08.2008 and obtained Rs.10,00,000/-(Rupees ten lac) from him and gave two bricks weighing about two kilograms saying that the bricks are of gold, whereas on examination, the bricks were found of brass or some other metal. 4.I have heard Sri Rajul Bhargava and Sri S. K. Dwivedi, Advocates appearing for the applicants and AGA for the State. 5.Before coming to the submissions made by learned counsel for the applicants and AGA, I would like to express my views on the legal question, which I have posed for consideration as stated herein-above. This question has been posed for consideration, because second or subsequent bail applications are being moved by Honble members of the Bar on the same ground, which were available at the time of rejection of the first bail application. It is generally argued by Honble members of the Bar that there is no legal bar to move second or subsequent bail applications even on those grounds, which were available at the time of disposal of first bail application, if arguments about those grounds were not advanced at the time of disposal of first bail application. 6.The matter of maintainability of second or subsequent bail application on the grounds, which were available at the time of rejection of first bail application, was considered by Division Bench of this Court in Satya Pal Vs. State of U.P. 1998(37) ACC 287. The following question was referred by the single Judge to be decided by 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 accused while the first bail application was moved and rejected. 7. Before the learned Single Judge reliance was placed on the decision of a learned Single Judge of this Court in the case of Gama and another v. State of U.P. 1986 (23) ACC 339. The learned Single Judge in paragraph 5 of his judgement observed as follows:- " I am conscious that order on a bail application need not be detailed one but as the legal points were argued from both sides which require a bit detail discussion. After hearing the counsel for the parties at considerable length, the first point for determination is as to whether the arguments advanced by the learned counsel for the applicants about the statements of most of the prosecution witnesses being recorded under section 164 of the Code was considered in the first order disposing of the bail application or not. Suffice it to say that the right of bail is statutory right, rather it is a constitutional right. 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 cannot 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." 8.Having considered the decisions of Honble Apex Court in State of Maharashtra Vs. Buddhikota Subha Rao 1989(26) ACC 503(SC), Babu Singh Vs. State of U.P. 1978 Cr. L. J. 651 (SC) as well as Shahzad Hasan Khan V. Ishtiaq Hasan Khan 1987(24) ACC 425(SC), the Bench consisting of Honble Girdhari Malvia and Honble K. D. Sahi, J.J. has held that 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. The view expressed by the Honble Single Judge in Gama Vs. State of U.P. (supra), was over-ruled by the Division Judge. 9.The matter of maintainability of second and subsequent bail application was considered by the Honble Apex Court in Kalyan Chandra Sarkar etc. Vs. Rajesh Ranjan @ Pappu Yadav and another 2005(51) ACC 727 (SC). On the basis of the observations made by the Honble Apex Court in the decision in this case, it can very well be stated that second or subsequent bail application can be moved on some fresh grounds or change of circumstances or law. The following observations made by Honble Apex Court in para 19 and 20 of the report are worth mentioning:- "19. The principles of res judicata and such analogous principles although are not applicable in a criminal proceedings, still the Courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our country. The findings of a higher Court or a coordinate Bench must receive serious consideration at the hands of the Court entertaining a bail application at a later stage when the same had been rejected earlier. In such an event, the Courts must give due weight to the grounds which weighed with the former or higher Court in rejecting the bail application. Ordinarily, the issues which had been convassed earlier would not be permitted to be re-agitated on the same grounds, as the same would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting. (underlining is our) 20. The decisions given by a superior forum, undoubtedly, is 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 the guaranty conferred on a person under Article 21 of the Constitution of India, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by Courts earlier including the Apex Court of the country." 10.Keeping in view aforecited observations made by the Honble Apex Court, I now come to the submissions made by the learned counsel for the applicants in support of the second bail application. The following main arguments were advanced by the learned counsel for the applicants:- (a) That the applicant no. 2 Majsad is not named in the FIR. (b)That five more persons were introduced in the statements under section 161 Cr.P.C., but chargesheet has not been submitted against them. For this submission, my attention has been drawn towards the statements of witnesses filed with supplementary affidavit dated 07.05.2009. (c)That both the applicants were not put to identification during investigation in Test Identification Parade and hence identity of the applicants is not established. It was submitted in this context that the applicants are residents of Uttar Pradesh, whereas the complainant is resident of Madhya Pradesh and he was not knowing the applicants since before the alleged incident. The contention of learned counsel was that since the complainant and witnesses were not knowing the applicants prior to the alleged incident, hence it was obligatory for the investigating officer to put the applicants to identification during investigation in Test Identification Parade and since it was not done, hence the identity of the applicants can not be said to be established. (d)That there was delay in lodging the FIR. (e)That there are material contradictions in the statements of the witnesses recorded under section 161 Cr.P.C. (f)That no recovery of any incriminating article was made from the applicants. (g)That in the statements recorded under section 161 Cr.P.C. of the complainant, details of mobile calls have not been given. (h)That no offence is made out against the applicants. (i)That there is no independent witness of the alleged incident of handing over bricks by the applicants and payment of Rs.10,00,000/- by the complainant to them. (j)That except the present case, there is no criminal antecedent of the applicants. (k)That the applicants are in jail for more than eight months and due to delay in trial their Fundamental Right of speedy trial envisaged under Article 21 of the Constitution is being infringed. 11.AGA on the other hand contended that after thorough investigation, chargesheet has been submitted against the applicants and since all the grounds, which have been mentioned by the learned counsel for the applicants in their arguments were available at the time of disposal of first bail application, hence on those very grounds, the second bail application is not maintainable. 12.Having given my thoughtful consideration to the submissions made by the learned AGA, I entirely agree with his contention that second bail application moved on behalf of the applicants is not legally maintainable, as no fresh ground has been shown in the 2nd bail application or at the time of arguments. I have already mentioned herein-above the submissions made by the learned counsel for the applicants. Except the ground of period of detention in jail, all other grounds, as mentioned above, were available to the applicants-accused at the time of disposal of the first bail application. Therefore, in view of the law laid down by the Division Bench of this Court in Satya Pal Vs. State of U.P. (supra) and keeping in view the observations made by Honble Apex Court in Kalyan Chand Sarkar Vs. Rajesh Ranjan @ Pappu Yadav (Supra), in my opinion, second bail application on those very facts and grounds that were available to the applicants when the first bail application was moved and rejected, cannot be allowed to be advanced. After passing order dated 11.11.2008 on the first bail application no. 30292 of 2008 by another Bench of this Court, the law on any point has not been changed. Merely because some other persons, whose complicity came to light during investigation, have been exonerated by the investigating officer, no benefit can be extended to the applicants. The matter of identification was considered by another Bench of this Court in the order dated 11.11.2008 passed in first bail application. Moreover, the matter of identification will be considered by the trial court. Therefore, as held by the Honble Apex Court in Kalyan Chand Sarkar Vs. Rakesh Ranjan @ Pappu Yadav (supra), the grounds which have been mentioned by the learned counsel for the applicants at the time of arguments and which are mentioned above, can not be permitted to be restated as the same would lead to speculation and uncertainty in the administration of justice and may lead to forum hunting. Although, as held by Honble Apex Court in Kalyan Chandra case (supra), there is room for filing of subsequent bail application in cases where earlier applications have been rejected, but the same can be done if there is change in the fact situation or in law, which requires earlier view being interfered with or where the earlier finding has become obsolete. Therefore, I am not in agreement with the argument of Sri Rajul Bhargava, learned counsel for the applicants that in view of the guarantee conferred on a person under Article 21 of the Constitution of India, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by courts earlier. 13.In my considered opinion, on the basis of the long incarceration in jail also, the applicant can not be admitted to bail in this heinous crime. In this context, reference may be made to the case of Pramod Kumar Saxena vs. Union of India and others 2008 (63) ACC 115, in which the Honble Apex Court has held that mere long period of incarceration in jail would not be per-se illegal. If the accused has committed offence, he has to remain behind bars. Such detention in jail even as an under trial prisoner would not be violative of Article 21 of the Constitution. 14.For the reasons mentioned herein-above, the second bail application of the applicants Khursheed and Majsad is hereby rejected. 15.The trial court is directed to conclude the trial of the applicants within a period of six months applying the provisions of section 309 Cr.P.C. and avoiding unnecessary adjournments. 16.The S.S.P. Mathura is also directed to depute special messenger to procure the attendance of the witnesses after obtaining their summons from the trial court concerned and it must be ensured that the witnesses are produced in the trial court for evidence without causing any delay. 17.The office is directed to send a copy of this order within a week to the trial court concerned and S.S.P. Mathura for necessary action. Dated: 29th June, 2009