2025:HHC:17523 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 958 of 2025 Reserved on: 28.5.2025 Date of Decision: 04.06.2025. Jony ...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. Vivek 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 vide FIR No. 108 of 2022, dated 26.6.2022, registered for the commission of offences punishable under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act (in short ‘the ND&PS Act’), at Police Station, Baijnath, District Kangra, H.P. The petitioner had earlier filed bail petitions which were dismissed by this Court on 13.12.2023, 24.7.2024 and 3.1.2025. The petitioner 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2025:HHC:17523 has no criminal history, and he was falsely implicated. The petitioner has been behind the bars since June 2022. The prosecution has examined 13 witnesses out of 17 cited by it. The case is not progressing, and the right to a speedy trial of the petitioner is being violated. No witness has been examined within three months since the dismissal of the earlier bail petition. There are material contradictions in the statements of the witnesses. Therefore, it was prayed that the present petition be allowed and the petitioner be released on bail. 2. The State has filed a status report asserting that the police party was checking the vehicles on 26.06.2022. One motorcycle came from Joginder Nagar's side. The petitioner was driving the motorcycle. He had two bags. The pillion rider had one backpack. The police searched the bags, which were being carried by the petitioner and found 1 kg 114 grams of Charas. The police seized the charas and arrested the petitioner and the co-accused. As per the report of the analysis, the quantity of resin was found to be 31.66 % w/w. The prosecution has cited 17 witnesses, out of whom the statements of 13 witnesses have been recorded. The matter is listed on 6.6.2025 for order. 3 2025:HHC:17523 3. I have heard Mr. Vivek Thakur, learned counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent-State. 4. Mr. Vivek Thakur, learned counsel for the petitioner, submitted that the petitioner is innocent and was falsely implicated. There are material contradictions in the statements of prosecution witnesses, and there is a delay in the progress of the trial. Hence, he prayed that the present petition be allowed and the petitioner be released on bail. He relied upon the judgments of Bhola Singh v. State of H.P. 2023 SCC OnLine HP 685, Dabe Ram Vs. State of H.P. 2023:HHC:10008, Naib Singh Vs. State of Haryana 2022:PHHC:147721, Puran Chand Vs. State of H.P. 2022:HHC:8765, Amit Singh Moni Vs. State of H.P. Cr. Appeal No. 668 of 2020, Pradeep Kumar Vs. State of H.P. 2025:HHC:5121 and Mohd. Muslim alias Hussain Vs. State 2023 SCC OnLine SC 352 in support of his submission. 5. Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent-State, submitted that the prosecution has already examined 13 witnesses out of 17 cited by it. The matter is listed before the learned Trial Court on 6.6.2025, therefore, it 4 2025:HHC:17523 cannot be said that there is any delay in the progress of the trial. 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 filed the bail petitions, which were registered as Cr.MPM No. 1813 of 2023, and Cr.MPM No. 1442 of 2024, and Cr.MP(M) No.2386 of 2024 and the same were dismissed on 13.12.2023, 24.07.2024 and 3.1.2025. 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, a subsequent 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 5 2025:HHC:17523 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 Singh Bajwa [(2001) 1 SCC 169: 2001 SCC (Cri) 113] and various other judgments. 9. 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, 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.” 6 2025:HHC:17523 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. 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 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 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 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: 7 2025:HHC:17523 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, a change in circumstance 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 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 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. 8 2025:HHC:17523 14. It was submitted that there is a delay in the progress of the trial, and the petitioner is entitled to bail, however, this submission is not acceptable. Prosecution has examined 13 witnesses out of 17 cited by it, and it cannot be said that there is any delay in the progress of the trial. The matter is already listed on 6.6.2025. Merely because the witnesses did not appear on one date of hearing does not mean that there is a delay in the progress of the trial. Keeping in view the huge quantity of narcotics found in the possession of the petitioner, the time taken to conclude the trial cannot be said to be unreasonable. Hence, the judgments cited on behalf of the petitioner do not apply to the present case. 15. It was submitted that there are various contradictions in the statements of the prosecution witnesses, and the petitioner is entitled to bail on this ground. This submission is not acceptable. It was laid down by the Hon’ble Supreme Court in X Vs. State of Rajasthan MANU/SC/1267/2024 that ordinarily, in serious offences Trial Court or the High Court should not entertain the bail application of the accused after the commencement of the trial and grant bail because of some discrepancy in the testimony. It was observed: - 9 2025:HHC:17523 “14. Ordinarily, in serious offences like rape, murder, dacoity, etc., once the trial commences and the prosecution starts examining its witnesses, the Court, be it the Trial Court or the High Court, should be loath in entertaining the bail application of the Accused. 15. Over a period of time, we have noticed two things, i.e., (i) either bail is granted after the charge is framed and just before the victim is to be examined by the prosecution before the trial court, or (ii) bail is granted once the recording of the oral evidence of the victim is complete by looking into some discrepancies here or there in the deposition and thereby testing the credibility of the victim. 16. We are of the view that the aforesaid is not a correct practice that the Courts below should adopt. Once the trial commences, it should be allowed to reach its final conclusion, which may either result in the conviction of the Accused or acquittal of the Accused. The moment the High Court exercises its discretion in favour of the Accused and orders the release of the Accused on bail by looking into the deposition of the victim, it will have its own impact on the pending trial when it comes to appreciating the oral evidence of the victim. It is only in the event that the trial gets unduly delayed and that, too, for no fault on the part of the Accused, the Court may be justified in ordering his release on bail on the ground that the right of the Accused to have a speedy trial has been infringed.” 16. In view of the above, the petitioner is not entitled to bail; hence, the present petition fails and the same is dismissed. However, the petitioner is at liberty to approach the Court in case the trial is not concluded within a reasonable time. 10 2025:HHC:17523 17. The observation made herein before shall remain confined to the disposal of the instant petition and will have no bearing, whatsoever, on the merits of the case. (Rakesh Kainthla) Judge 4th June, 2025 (Chander)