Uttarakhand High Court
8 June vs State Of Uttarakhand And Others on 18 June, 2025
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
2025:UHC:5308
HIGH COURT OF UTTARAKHAND AT NAINITAL
Second Bail Application No. 81 of 2025
18 June, 2025
Suresh Sharma ............... Applicant
Vs.
State of Uttarakhand and others
............Respondents
Counsel for the Applicant: Mr. Vinod Sharma and Mr. Kamlesh
Budlakoti, learned counsel
Counsel for the State: Mr. Siddharth Bisht, learned A.G.A.
and Mr. Himanshu Sain, learned
Brief Holder
Counsel for the Complainant: Ms. Pushpa Joshi, learned Senior
Advocate assisted by Mr. Pankaj
Singh Chauhan and Mr. Jeetendra
Gupta, learned counsel.
(Mr. Rakesh Thapliyal, J.)
1. The instant second bail application is moved by the
present applicant Suresh Sharma praying for bail in
relation to Session Trial No. 1 of 2025, arising out of Case
Crime No. 1 of 1999 in which the applicant is facing trial
for the offence punishable under Section 302 IPC read
with Section 25 and 25/4 of the Arms Act at P.S.
Badrinath, District Chamoli.
2. Brief facts, of the case, are that an FIR was lodged
by one Pooran Singh Mehra on 28.04.1999 by raising
allegations that the present applicant first used country
made pistol but the same missed and thereafter he
inflicted knife blows on the deceased due to which the
deceased died. As per the FIR, one Kalpeshwar Bhatt, in
addition to the complainant was the eye witness of the
incident. The applicant was arrested on the same day, i.e.,
on 28.04.1999 at 10:30 am. Thereafter, the applicant
applied for bail before the Sessions Court which was
rejected and then he approached to the High Court
Judicature at Allahabad.
Thereafter, by order dated 08.06.1999, the High
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Court judicature at Allahabad enlarged the applicant on
bail which is being reproduced herein as under:-
BY THE COURT
“Heard Sri Dharmendra Singhal holding brief of
Sri V.P Srivastava learned counsel for the applicant,
learned A.G.A. for the State and Sri J.S. Sengar learned
counsel appearing for the complainant.
It is contended by the appellant’s counsel that as
per the F.I.R version the applicant first used country
made pistol but the same missed and thereafter he
inflicted knife blows on the deceased while holding
another Tamancha in his other hand. However, the post
mortem report revealed that all the injuries sustained
by the deceased were lacerated wounds. Learned
counsel also argued that having regard to the condition
of the stomach and to the medical discrepancy, the
possibility of the murder having been committed in
early hours of the day cannot be ruled out. On the
other hand Sri Sengar argued that a blood stained knife
was found on the spot and at this stage it cannot be
said that the said knife was not used in the commission
of crime.
It would not be appropriate for this Court at this
stage to make any positive observation either way on
the rival contentions of the rival parties as the same
may unnecessarily prejudice the mind of the trial court
but having regard to the facts and circumstances of the
case, I feel inclined to enlarge the applicant on bail.
Let the applicant, Suresh Sharma involved in
case Crime No. 1/99 under Section 302 IPC P.S.
Badrinath District Chamoli be enlarged on bail on his
executing a personal bond and furnishing two sureties
each in the like amount to the satisfaction of the C.J.M.
Chamoli.
Sd/-J.C. Gupta J,
8.6.99″
3. Thereafter the daughter of the deceased “Babita”
Bhatt approached to the Hon’ble Apex Court against the
order granting bail by the High Court by preferring Special
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Leave to Appeal (Crl.) Nos. 3056-3058 of 1999 and the
Hon’ble Apex Court on 13.09.1999 passed the following
order:-
“Permission to file SLP is allowed.
Issue notice. We suspend the impugned order and
direct the Sessions Court concerned to put the
second respondent back in jail.”
4. Though, the order granting bail by the High Court
was suspended by the Hon’ble Apex Court with a direction
to the Sessions Court to put the applicant back in jail but
the applicant could not be arrested and absconded, and,
ultimately on 04.02.2000, the Hon’ble Apex Court
disposed of the appeal with the following direction:-
“Leave granted.
It is unfortunate that the High Court has
released the accused (2nd respondent -Suresh
Sharma) on bail without adverting to any valid
reason at all. The very fact that 2nd respondent-
accused has not become untraceable is proof
positive that the learned Single Judge of the High
Court has not taken into account all aspects while
granting bail to him. It is reported by the State (1st
respondent) that 2nd respondent is absconding
now.
The Sessions judge also reported to the
same effect. We, therefore, set aside the impugned
order and direct the Sessions Judge to continue the
efforts to get the 2nd respondent arrested and put
him back in jail and he will be detained in jail
during the trial period.
These appeals are accordingly disposed of.
5. Though the Hon’ble Apex Court disposed of the appeal
on 04.02.2000 but the applicant was never been arrested
and, in fact, the order of the Apex Court could not be
complied with. Almost after 24 years, the Special Task Force
of the State arrested the applicant on 23.01.2025 from
Jharkhand.
6. Thereafter, the applicant moved discharge application
on several grounds and one of the grounds was that before
arrest, the constitutional mandate was not complied with,
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particularly Article 21 and 22 of the Constitution of India,
and, furthermore, this is a case of false implication and the
deceased was the history sheeter. The discharge application
was rejected by the learned District and Session Judge,
Chamoli on 10.03.2025.
Thereafter, the applicant preferred second bail
application before the Sessions Court with the same
grounds, as taken in discharge application, however, the
same was also rejected by the Sessions Court on
05.04.2025.
7. After rejection of second bail application by the
Sessions Court, the present applicant preferred the instant
second bail application.
8. Mr. Vinod Sharma, learned counsel for the applicant
argued that before arrest of the applicant constitutional
mandate was not complied with and before suspending the
order granting bail by the High Court Judicature at
Allahabad no opportunity was given by the Hon’ble apex
Court which amounts to violation of principle of natural
justice.
9. Mr. Vinod Sharma, learned counsel for the applicant,
questioned the order passed by the Hon’ble Apex Court
suspending the order of bail, granted by the High Court. In
support of his submission Mr. Sharma placed reliance on
Hon’ble Apex Court’s judgment in the case of Mahabir and
others vs. State of Haryana, 2025 SCC OnLine SC184 and
referred para 4, 5 and 98, which are being extracted herein
as under:-
4. “There is no higher principle for the guidance of
the court than the one that no act of courts should
harm a litigant and it is the bounden duty of the
courts to see that if a person is harmed by a mistake
of the court he should be restored to the position he
would have occupied, but for that mistake.”
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5. The above is aptly summed up in the maxim
“actus curiae neminem gravabit”. It implies that
judicial actions should not unfairly harm any party
and that courts should act judiciously to prevent
errors that could lead to injustice. (Jang Sing v. Brij
Lal and Others reported in AIR 1966 SC 1631).
98. Judges are human beings and at times they do
commit mistakes. The sheer pressure of work at
times may lead to such errors. At the same time,
the defence counsel as well as the Public
Prosecutor owes a duty to correct the Court if the
Court is falling in some error and for all this, we
hold the State Government responsible. It is the
State Government who appointed the concerned
Public Prosecutor. The State Government should be
asked to pay compensation to the three appellants
herein.
10. The another judgment which has been relied upon
is the Hon’ble Apex Court’s decision, ie. in the case of
Suresh Chandra Nanhorya vs. Rajendra Rajak and
others, (2006) 7 SCC 800 and he referred para 8, 9, 10
and 11 which are being reproduced herein as under:-
“8. Natural justice is an inseparable ingredient of
fairness and reasonableness. It is even said that the
principles of natural justice must be read into
unoccupied interstices of the statute, unless there is
a clear mandate to the contrary.
9. In the celebrated case of Cooper v.
Wandsworth Board of Works, 1963 (143) ER 414,
the principle was thus stated:
“Even God did not pass a sentence upon Adam,
before he was called upon to make his defence.
‘Adam’, says God, ‘where art thou’ has thou not
eaten of the tree whereof I commanded thee that
‘thou should not eat’.”
10. Since then the principle has been chiselled,
honed and refined, enriching its content. In Mullooh
v. Aberdeen , it was stated : (AII ER p. 1279e)
“The right of a man to be heard in his defence
is the most elementary protection…….”
11. Natural justice is the essence of fair
adjudication, deeply rooted in tradition and
conscience, to be ranked as fundamental. The
purpose of following the principles of natural justice
is the prevention of miscarriage of justice.”
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11. In addition to this, Mr. Sharma placed reliance on
various judgments of Hon’ble Apex Court, i.e., in the case
of State of Orissa and another vs. Mamata Mohanty,
(2011) 3 SCC 439 and particularly he placed reliance
upon para 37 and 57. Further, he also placed reliance on
another judgment of Hon’ble Apex Court in the case of
Jang Singh vs. Brij Lal and others, 1963 SCC OnLine SC
219 and submits that it is the bounden duty of the Courts
to see that if a person is harmed by a mistake of the
Court he should be restored to the position he would
have occupied but for that mistake.
12. In addition to aforesaid judgments, Mr. Sharma also
placed reliance on Hon’ble Apex Court’s judgment in the
case of Nawabkhan Abbaskhan vs. The State of Gujarat,
(1974) 2 SCC 121 by placing reliance of para 7 and 19
and submits that without giving ground of arrest, the
arrest of the applicant is bad in law and, as such, he
deserves for bail.
13. In reference to his argument that before directing
the Sessions Court to take the applicant in custody no
opportunity was given, he placed reliance on the
judgment of Hon’ble Apex Court in the case of J.S. Yadav
vs. State of Uttar Pradesh and another, (2011) 6 SCC
570 and by placing reliance of para 31 he submits that
since the directions were issued to the Sessions Court to
take the applicant in custody behind his back, and, as
such, the order of Apex Court should be ignored while
considering the instant second bail application. In support
of his argument he placed reliance also on another
judgment of Madras High Court in the case of M/s Gen
Next Motors Limited vs. M/s Nissan Renault Financial
Services India Limited and another, 2019 0Supreme
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(Mad) 307 and submits that it is settled principle of law
that no order can be passed behind back of a person
adversely affecting him and such an order if passed, is
liable to be ignored being not binding on such a party as
the same has been passed in violation of the principles of
natural justice
14. Mr. Sharma also placed reliance on another
judgment of Hon’ble Apex Court in the case of Vipin
Kumar vs. State of U.P. passed in Criminal Appeal No.
726 of 2025 decided on 13.02.2025. In this case earlier
the bail application of the appellant was allowed by the
High Court but subsequently it was set aside by the
Hon’ble Apex Court and thereafter a fresh bail application
was moved before the High Court but the same was
rejected solely on the ground that the Hon’ble Apex Court
while cancelling the bail granted by the High Court had
not given any liberty to the appellant to file a fresh bail
application. In para 4 and 6 of this judgment the Hon’ble
Apex Court observed as under:-
4. There is no prohibition in filing a fresh bail
application after the earlier was rejected or cancelled, if
granted. This Court in cancelling the bail application has
not taken away the right of the appellant to apply for bail
afresh, if the circumstances permit.
5. Filing of a fresh bail application, once an earlier bail
application has been rejected or if granted and thereafter
canceled is a matter of right and solely on the ground
that the Apex Court had not permitted filing of the fresh
bail application, the High Court was not justified in
dismissing the bail application.
6. In view of the aforesaid facts and circumstances,
the order impugned dated 31.05.2024 passed by the High
Court rejecting the bail application of the appellant is
hereby set aside and the matter is remanded to the High
Court for decision afresh on merits.
15. In addition to the aforesaid judgments, as relied
upon, Mr. Sharma placed also placed reliance on various
judgments which are as follows: Ramesh Motilal7
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Khandelwal vs. Zilla Parishad, Akola, 1992 Mh.L.J. 325;
Jeeshan and another vs. State of U.P. and others passed
in Criminal Misc. Writ petition no. 10974 of 2020, 2021
SCC OnLine All 85; Jagannath Temple Managing
Committee vs. Siddha Math and others, (2015) 16 SCC
572 ; Vihan Kumar vs. State of Haryana and another
2025 SCC OnLine SC 269 and also para 21(f) of the
judgment in the case of Central Bureau of Investigation
and others vs. Keshub Mahindra and others, (2011) 6
SCC 216
16. By referring aforesaid judgments Mr. Sharma
argued that seeking bail is the statutory right of the
applicant and the same cannot be curtailed without giving
an opportunity. By placing reliance of so many judgments
Mr. Sharma, argued that the High Court of Judicature at
Allahabad by a well reasoned order granted bail to the
applicant, however, without giving any opportunity of
hearing the order was suspended with the further
direction to the Sessions Court to take the applicant in
custody. Apart from this, he submits that the Sessions
Court while rejecting the second bail application have not
considered this aspect that at the time of arrest the
applicant was not provided the ground of arrest which are
in fact the constitutional mandate, and, as such, the
arrest of the applicant is bad and, therefore, the applicant
deserves for bail. He submits that the Sessions Court
being influenced with the order of the Hon’ble Apex Court
reject the bail application of the applicant. He further
submits that even if the Hon’ble Apex Court reject the
bail application, his successive bail application cannot be
rejected merely on the ground that the Apex Court
cancelled his bail , as seeking bail is the statutory right of
the applicant.
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17. Per contra, learned A.G.A. for the State submits that
successive bail applications are not maintainable if fresh
ground are not available but surprisingly no such grounds
have been taken by the applicant, and, therefore, the
instant second bail application is not maintainable at all.
18. In response to the argument of Mr. Sharma that no
ground of arrest was provided to the applicant before
arrest which took place in the year 1999, learned A.G.A.
submits that the arguments in this regard is thoroughly
misconceived, since, the applicant was granted bail by
the High Court Judicature at Allahabad but subsequently,
the judgment was stayed by Hon’ble Apex Court with a
direction to the Sessions Court to take him back in
custody, therefore, this ground is not at all available to
the applicant to seek bail in successive bail application.
19. Learned A.G.A. also submits that questioning the
order of the Hon’ble Apex Court that too in successive
bail application is wholly unwarranted, particularly when
the applicant never make an attempt to put his
appearance before the Hon’ble Apex Court, though, when
the judgment of the High Court Judicature at Allahabad
was stayed notices were issued to the applicant.
By advancing the aforesaid submissions Mr. Bisht,
learned A.G.A. submits that the applicant does not
deserve for bail because of his conduct since the
applicant was absconding for last 25 years
20. Per contra, Ms. Pushpa Joshi, learned Senior
Advocate who appears for the complainant vehemently
opposed the bail application by advancing the following
submissions:-
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(a) The applicant instead of putting his appearance
through counsel before the Hon’ble Apex Court
absconded due to which the directions issued by the
Hon’ble Apex Court could not be complied with by
the Sessions Court.
(b) The SLP was disposed of by the Hon’ble Apex
Court in the year 2000 and for 25 years the
applicant was absconding and he was arrested by
the Special Task Force from Jharkhand, and, as
such, the conduct of the applicant is nothing but to
avoid to face the trial. She further submits that
since no fresh ground is available for seeking bail in
successive bail application, therefore the applicant
does not deserve for bail. For rest Ms. Pushpa Joshi,
adopts the argument of learned A.G.A.
21. After hearing the arguments of the learned counsel
for the parties, and further gone through with the
judgments ,as relied upon by the learned counsel for the
applicant, this Court is of the view that the past conduct
of the applicant reveals that the applicant was avoiding to
face the trial. It is very strange that the applicant was
absconding since last 25 years and even he has not make
any attempt to put appearance before the Hon’ble Apex
Court through his counsel. The applicant was arrested
from Jharkhand by Special Task Force, and, therefore,
keeping in view the past conduct of the applicant, this
Court does not find any merit in the instant second bail
application and the same is accordingly dismissed.
(Rakesh Thapliyal, J.)
Parul
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