Himachal Pradesh High Court
Reserved On: 28.02.2025 vs State Of Himachal Pradesh on 7 March, 2025
2025:HHC:5122
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP (M) No. 2945 of 2024
Reserved on: 28.02.2025
Date of Decision: 7th March 2025.
Vijay 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 : Mr. Parikshit Rathour,
Advocate.
For the Respondent/State. : Mr. Jitender Sharma, 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
vide F.I.R. No. 240 of 2023, dated 18.11.2023, registered for the
commission of offences punishable under Sections 21 and 29 of
the Narcotic Drugs and Psychotropic Substances Act (in short
NDPS Act) at Police Station Sadar, District Solan, H.P. The
petitioner is innocent and he was falsely implicated. He was
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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arrested on 18.11.2023 and is lodged in District Jail Solan. The
charge sheet has been filed and no fruitful purpose would be
served by detaining the petitioner in custody. The prosecution has
examined three witnesses out of 24 witnesses cited in the charge
sheet. The conclusion of the trial will take some time, therefore, it
was prayed that the present petition be allowed and the petitioner
be released on bail.
2. The police filed a status report asserting that the police
party was on patrolling duty on 18.11.2023 when a secret
information was received that Vijay Kumar and Rahul were
staying in Room No. 104 of Sona Guest House and they had
brought a huge quantity of Heroin. The information was reduced
into writing. Room No. 104 was searched and 7.34 grams of heroin
was recovered during the search. Rahul and petitioner Vijay were
found in the room. The police arrested them and seized the heroin.
They were interrogated. Narinder Singh and Mohit Lakhanpal
were arrested based on the disclosure statements made by Rahul
and petitioner Vijay. The result of the analysis shows that the
sample stated to be heroin was a sample of Diacetylmorphine
(Heroin). One accused, Harjot Singh, was also arrested after filing
the charge sheet. F.I.R. No. 339 of 204, dated 20.10.2004, for the
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commission of offences punishable under Sections 418, 451, and
506 of the Indian Penal Code (IPC), was registered against the
petitioner at the police station (P.S.) Sadar in which he was
acquitted. F.I.R. No. 127 of 2023, dated 20.06.2023, was registered
against the petitioner at P.S. Sadar, Solan, for the commission of
offences punishable under Sections 21 & 29 of the NDPS Act. F.I.R.
No. 15/20 dated 19.03.2020 was registered against the petitioner at
Women Police Station (WPS) Solan, H.P. for the commission of
offences punishable under Sections 376, 376 D, 511, 354, 34 of IPC
and Section 12 of Protection of Children from Sexual Offences
(POCSO) Act. The challan was presented before the learned Trial
Court on 15.01.2024. The matter is now listed for the prosecution
evidence on 03.05.2025; hence, the status report.
3. I have heard Mr. Parikshit Rathour, learned counsel for
the petitioner and Mr. Jitender Sharma, learned Additional
Advocate General for the respondent/State.
4. Mr Parikshit Rathour, learned counsel for the
petitioner, submitted that the petitioner was found in possession
of 7.34 grams of heroin, which is slightly more than the small
quantity. The other co-accused have been released on bail. The
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previous bail petition was dismissed by this Court on the ground
that the petitioner has criminal antecedents. The prosecution has
failed to complete the evidence within 15 months. The right of
speedy trial of the petitioner is being violated; hence, he prayed
that the present petition be allowed and the petitioner be released
on bail.
5. Mr. Jitender Sharma, learned Additional Advocate
General for the respondent/State submitted that the petitioner has
criminal antecedents and he is likely to commit a similar offence
in case of his release on bail. The circumstances have not changed
since the decision of the earlier bail petition; hence, 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. It is undisputed that the petitioner had earlier filed a
bail petition bearing Cr.MP(M) No.44 of 2024, which was
dismissed by this Court on 26.04.2024. 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
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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.
8. 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
6
2025:HHC:5122Singh Bajwa [(2001) 1 SCC 169: 2001 SCC (Cri) 113] and
various other judgments.
9. Similarly, it was held in Kalyan Chandra Sarkar Vs.
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, 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.”
10. 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.”
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11. 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, 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.”
12. 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
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2025:HHC:5122completely 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 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.”
13. Therefore, the present bail petition can only be
considered on the basis of the change in the circumstances, and it
is not permissible to review the order passed by the Court.
14. The petitioner asserted that the prosecution had failed
to complete the evidence within a reasonable time. A perusal of
the status report shows that the petitioner was arrested on
18.11.2023 and the matter is now listed for the examination of
witnesses at Sr. No. 4 to 6 on 03.05.2025. The copies of the order
sheets show that the Court had summoned witnesses at Sr. Nos.1
to 3 and thereafter witnesses at Sr. Nos. 4 to 6 instead of
summoning all the witnesses. The piecemeal summoning of the
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witnesses corroborates the submission of the petitioner that the
trial is not likely to conclude soon.
15. It was laid down in Mohd. Muslim v. State (NCT of Delhi),
2023 SCC OnLine SC 352 that the right of speedy trial is a
constitutional right of an accused. The right of bail is curtailed on
the premise that the trial would be concluded expeditiously. It was
observed: –
“13. When provisions of law curtail the right of an accused
to secure bail, and correspondingly fetter judicial discretion
(like Section 37 of the NDPS Act, in the present case), this
court has upheld them for conflating two competing values,
i.e., the right of the accused to enjoy freedom, based on the
presumption of innocence, and societal interest – as
observed in Vaman Narain Ghiya v. State of Rajasthan, [2008]
17 SCR 369: (2009) 2 SCC 281 (‘the concept of bail emerges
from the conflict between the police power to restrict
liberty of a man who is alleged to have committed a crime,
and presumption of innocence in favour of the alleged
criminal….’). They are, at the same time, upheld on the
condition that the trial is concluded expeditiously. The
Constitution Bench in Kartar Singh v. State of Punjab, [1994]
2 SCR 375: (1994) 3 SCC 569 made observations to this effect.
In Shaheen Welfare Association v. Union of India, [1996] 2 SCR
1123: (1996) 2 SCC 616 again, this court expressed the same
sentiment, namely that when stringent provisions are
enacted, curtailing the provisions of bail, and restricting
judicial discretion, it is on the basis that investigation and
trials would be concluded swiftly. The court said that
Parliamentary intervention is based on:
A conscious decision has been taken by the legislature
to sacrifice to some extent, the personal liberty of an
under-trial accused for the sake of protecting the
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2025:HHC:5122community and the nation against terrorist and
disruptive activities or other activities harmful to
society, it is all the more necessary that investigation
of such crimes is done efficiently and an adequate
number of Designated Courts are set up to bring to
book persons accused of such serious crimes. This is
the only way in which society can be protected
against harmful activities. This would also ensure
that persons ultimately found innocent are not
unnecessarily kept in jail for long periods.”
16. The Court highlighted the effects of pre-trial detention
and the importance of speedy trial as under:
“22. Before parting, it would be important to reflect that
laws which impose stringent conditions for the grant of
bail, may be necessary in the public interest; yet, if trials are
not concluded in time, the injustice wrecked on the
individual is immeasurable. Jails are overcrowded and their
living conditions, more often than not, appalling. According
to the Union Home Ministry’s response to Parliament, the
National Crime Records Bureau had recorded that as of 31 st
December 2021, over 5,54,034 prisoners were lodged in jails
against a total capacity of 4,25,069 lakhs in the
country[National Crime Records Bureau, Prison Statistics in
India https://ncrb. gov. in/sites/default/files/P SI-202
1/Executive ncrb Summary-2021.pdf]. Of these 122,852 were
convicts; the rest 4,27,165 were undertrials.
23. The danger of unjust imprisonment, is that inmates are
at risk of ‘prisonisation’ a term described by the Kerala
High Court in A Convict Prisoner v. State, 1993 Cri LJ 3242 as a
radical transformation ‘ whereby the prisoner:
‘loses his identity. He is known by a number. He loses
personal possessions. He has no personal
relationships. Psychological problems result from
loss of freedom, status, possessions, dignity any
autonomy of personal life. The inmate culture of
prison turns out to be dreadful. The prisoner becomes
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2025:HHC:5122hostile by ordinary standards. Self-perception
changes. ‘
24. There is a further danger of the prisoner turning to
crime, ‘as crime not only turns admirable but the more
professional the crime, more honour is paid to the
criminal'[Working Papers – Group on Prisons & Borstals –
1966 U.K.] (also see Donald Clemmer’s ‘The Prison
Community’ published in 1940[Donald Clemmer, The Prison
Community (1968) Holt, Rinehart & Winston, which is referred
to in Tomasz Sobecki, ‘Donald Clemmer’s Concept of
Prisonisation’, available at: https://www.tkp.edu.pl/
wpcontent/uploads/2020/12/Sobecki_sklad.pdf (accessed on
23rd March 2023).]). Incarceration has further deleterious
effects – where the accused belongs to the weakest
economic strata: immediate loss of livelihood, and in
several cases, scattering of families as well as loss of family
bonds and alienation from society. The courts, therefore,
have to be sensitive to these aspects (because in the event of
an acquittal, the loss to the accused is irreparable), and
ensure that trials – especially in cases, where special laws
enact stringent provisions, are taken up and concluded
speedily.”
17. It was held in Shaheen Welfare Assn. v. Union of India,
(1996) 2 SCC 616: 1996 SCC (Cri) 366 that a person cannot be kept
behind bars when there is no prospect of trial being concluded
expeditiously. It was observed at page 621:
“8. It is in this context that it has become necessary to
grant some relief to those persons who have been deprived
of their personal liberty for a considerable length of time
without any prospect of the trial being concluded in the
near future. Undoubtedly, the safety of the community and
the nation needs to be safeguarded looking to the nature of
the offences these undertrials have been charged with. But
the ultimate justification for such deprivation of liberty
12
2025:HHC:5122pending trial can only be their being found guilty of the
offences for which they have been charged. If such a finding
is not likely to be arrived at within a reasonable time some
relief becomes necessary.”
18. Similarly, it was laid down by the Hon’ble Supreme
Court in Jagjeet Singh v. Ashish Mishra, (2022) 9 SCC 321: (2022) 3
SCC (Cri) 560: 2022 SCC OnLine SC 453 that no accused can be
subjected to unending detention pending trial. It was observed at
page 335:
“40. Having held so, we cannot be oblivious to what has
been urged on behalf of the respondent-accused that
cancellation of bail by this Court is likely to be construed as
an indefinite foreclosure of his right to seek bail. It is not
necessary to dwell upon the wealth of case law which,
regardless of the stringent provisions in a penal law or the
gravity of the offence, has time and again recognised the
legitimacy of seeking liberty from incarceration. To put it
differently, no accused can be subjected to unending
detention pending trial, especially when the law presumes
him to be innocent until proven guilty. Even where
statutory provisions expressly bar the grant of bail, such as
in cases under the Unlawful Activities (Prevention) Act,
1967, this Court has expressly ruled that after a reasonably
long period of incarceration, or for any other valid reason,
such stringent provisions will melt down, and cannot be
measured over and above the right of liberty guaranteed
under Article 21 of the Constitution (see Union of
India v. K.A. Najeeb [Union of India v. K.A. Najeeb, (2021) 3
SCC 713, paras 15 and 17] ).”
19. It was laid down by the Hon’ble Supreme Court
recently in Javed Gulam Nabi Shaikh v. State of Maharashtra (2024)
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9 SCC 813: 2024 SCC OnLine SC 1693 that the right to speedy trial of
the offenders facing criminal charges is an important facet of
Article 21 of the Constitution of India and inordinate delay in the
conclusion of the trial entitles the accused to grant of bail, it was
observed at page 817: –
“10. Long back, in Hussainara Khatoon (1) v. State of
Bihar [Hussainara Khatoon (1) v. State of Bihar, (1980) 1 SCC
81: 1980 SCC (Cri) 23], this Court had declared that the right
to speedy trial of offenders facing criminal charges is
“implicit in the broad sweep and content of Article 21 as
interpreted by this Court”. Remarking that a valid
procedure under Article 21 is one which contains a
procedure that is “reasonable, fair and just” it was held that
: (SCC p. 89, para 5)
“5. … Now obviously procedure prescribed by law for
depriving a person of liberty cannot be “reasonable, fair
or just” unless that procedure ensures a speedy trial for
determination of the guilt of such person. No procedure
which does not ensure a reasonably quick trial can be
regarded as “reasonable, fair or just” and it would fall
foul of Article 21. There can, therefore, be no doubt that
speedy trial, and by speedy trial we mean reasonably
expeditious trial, is an integral and essential part of the
fundamental right to life and liberty enshrined in Article
21. The question which would, however, arise is as to
what would be the consequence if a person accused of an
offence is denied a speedy trial and is sought to be
deprived of his liberty by imprisonment as a result of a
long-delayed trial in violation of his fundamental right
under Article 21.”
11. The aforesaid observations have resonated, time and
again, in several judgments, such as Kadra Pahadiya v. State
of Bihar [Kadra Pahadiya v. State of Bihar, (1981) 3 SCC 671:
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1981 SCC (Cri) 791] and Abdul Rehman Antulay v. R.S.
Nayak [Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225:
1992 SCC (Cri) 93]. In the latter, the court re-emphasised
the right to a speedy trial and further held that an accused,
facing prolonged trial, has no option: (Abdul Rehman
Antulay case [Abdul Rehman Antulay v. R.S. Nayak, (1992) 1
SCC 225: 1992 SCC (Cri) 93], SCC p. 269, para 84)
“84. … The State or complainant prosecutes him. It is,
thus, the obligation of the State or the complainant, as
the case may be, to proceed with the case with
reasonable promptitude. Particularly, in this country,
where the large majority of accused come from poorer
and weaker sections of the society, not versed in the
ways of law, where they do not often get competent legal
advice, the application of the said rule is wholly
inadvisable. Of course, in a given case, if an accused
demands a speedy trial and yet he is not given one, may
be a relevant factor in his favour. But we cannot
disentitle an accused from complaining of infringement
of his right to a speedy trial on the ground that he did
not ask for or insist upon a speedy trial.”
20. It was further held that if the State or any prosecuting
agency including the Court concerned has no wherewithal to
provide the right of speedy trial to the accused, then the bail
should not be opposed on the ground that crime is serious. It was
observed at page 820:
17. If the State or any prosecuting agency including the
court concerned has no wherewithal to provide or protect
the fundamental right of an accused to have a speedy trial
as enshrined under Article 21 of the Constitution then the
State or any other prosecuting agency should not oppose
the plea for bail on the ground that the crime committed is
15
2025:HHC:5122serious. Article 21 of the Constitution applies irrespective of
the nature of the crime.
18. We may hasten to add that the petitioner is still an
accused; not a convict. The over-arching postulate of
criminal jurisprudence that an accused is presumed to be
innocent until proven guilty cannot be brushed aside
lightly, howsoever stringent the penal law may be.
19. We are convinced that the manner in which the
prosecuting agency as well as the Court have
proceeded, the right of the accused to have a speedy
trial could be said to have been infringed thereby
violating Article 21 of the Constitution.
21. In the present case, the fact that the prosecution has
failed to produce witnesses and the Court has also not summoned
all the witnesses shows that the right of speedy trial of the
petitioner is being violated and he is entitled to be released on bail
on this ground.
22. The petitioner was found in possession of 7.34 grams
of heroin, which is slightly more than the small quantity. Keeping
in view the quantity of the heroin recovered from the possession
of the petitioner, his pre-trial detention is not justified.
23. It was submitted that many FIRs are pending against
the petitioner and he should not be released on bail. This
submission cannot be accepted. It was laid down by the Hon’ble
Supreme Court in Ayub Khan v. State of Rajasthan, 2024 SCC OnLine
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2025:HHC:5122SC 3763: 2024: INSC:994 that the criminal antecedents may not be a
reason to deny the bail to the accused in case of his long
incarceration. It was observed:
“10. The presence of the antecedents of the accused is only
one of the several considerations for deciding the prayer for
bail made by him. In a given case, if the accused makes out a
strong prima facie case, depending upon the fact situation
and period of incarceration, the presence of antecedents
may not be a ground to deny bail. There may be a case
where a Court can grant bail only on the grounds of long
incarceration. The presence of antecedents may not be
relevant in such a case. In a given case, the Court may grant
default bail. Again, the antecedents of the accused are
irrelevant in such a case. Thus, depending upon the peculiar
facts, the Court can grant bail notwithstanding the
existence of the antecedents.”
24. Since, in the present case, the petitioner has
undergone long incarceration, therefore, his criminal antecedents
are not sufficient to deny him bail.
25. In view of the above, the present petition is allowed,
and the petitioner is ordered to be released on bail subject to his
furnishing of bail bonds in the sum of ₹1,00,000/- with one surety
in the like amount to the satisfaction of the learned Trial Court.
While on bail, the petitioner will abide by the following
conditions:
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(i) The petitioner will not intimidate the witnesses, nor will he
influence any evidence in any manner whatsoever.
(ii) The petitioner shall attend the trial and will not seek
unnecessary adjournments.
(iii) The petitioner will not leave the present address for a
continuous period of seven days without furnishing the
address of the intended visit to the concerned Police Station
and the Court.
(iv) The petitioner will furnish his mobile number and social
media contact to the Police and the Court and will abide by
the summons/notices received from the Police/Court
through SMS/WhatsApp/Social Media Account. In case of
any change in the mobile number or social media accounts,
the same will be intimated to the Police/Court within five
days from the date of the change.
26. It is clarified that if the petitioner misuses the liberty
or violates any of the conditions imposed upon him, the
investigating agency shall be free to move the Court for
cancellation of the bail.
27. The observations made hereinabove are regarding the
disposal of this petition and will have no bearing, whatsoever, on
the case’s merits.
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28. The petition stands accordingly disposed of. A copy of
this order will be sent to the Superintendent, District Jail Solan,
H.P., and the learned Trial Court by FASTER.
29. A downloaded copy of this order shall be accepted by
the learned Trial Court while accepting the bail bonds from the
petitioner, and in case said Court intends to ascertain the veracity
of the downloaded copy of the order presented to it, same may be
ascertained from the official website of this Court.
(Rakesh Kainthla)
7 March, 2025
th
Judge
(Nikita)
Digitally signed by KARAN SINGH GULERIA
Date: 2025.03.07 11:46:30 IST