2025:HHC:12448 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 720 of 2025 Reserved on: 25.04.2025 Date of Decision: 05.05.2025. Asif Saifi ...Petitioner Versus State of Himachal Pradesh ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioner : M/s Anirudh Sharma and Pavinder, Advocates. For the Respondent : Mr. Ajit Sharma, Deputy 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. 27 of 2023, dated 24.7.2023, registered for the commission of offences punishable under Sections 354-A, 509 and 452 of the Indian Penal Code (IPC) and Sections 8 and 12 of the Protection of Children from Sexual Offences Act (POCSO) at Women Police Station, Solan, District Solan, H.P. The 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2025:HHC:12448 petitioner was falsely implicated. He had earlier filed a bail petition before this Court, which was dismissed on 16.10.2024. The victim was examined before the learned Trial Court and she deposed that nothing had happened to her. The allegations against the petitioner regarding the photographs in the cell phone of the petitioner were also not proved. The petitioner would abide by the terms and conditions which the Court may impose. Hence the petition. 2. The petition is opposed by filing a status report asserting that the mother of the victim made a complaint to the police that she was informed by Gopal Dass on 24.7.2023 that the petitioner had entered the room of the victim and sexually assaulted her. The victim’s mother reached the house, and the victim told her that one boy came to the house pretending to be an electrician. He sexually assaulted the victim and touched her inappropriately. Gopal Dass apprehended that person. The petitioner was present on the spot. The police recorded the FIR and arrested the petitioner. The statement of the victim was recorded under Section 164 Cr.P.C. The police also seized the motorcycle and mobile phone of the petitioner. The petitioner had also taken the photographs during the incident, and the 3 2025:HHC:12448 mobile phone was sent to SFSL for analysis. As per the analysis, the images captured on 24.7.2023 between 2.00 PM to 4.00 PM were found in the mobile phone, and no data was found in the SIM. The police prepared the challan and presented it before the Court. The statement of the victim was recorded on 19.07.2024, and the matter was listed before the learned Trial Court on 19.4.2025 for recording the statements of prosecution witnesses. 3. I have heard M/s Anirudh Sharma and Pavinder, learned counsel for the petitioner and Mr. Ajit Sharma, learned Additional Advocate General, for the respondent-State. 4. Mr. Anirudh Sharma, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. The victim did not support the prosecution's version. The person, from whose shop the mobile was taken, has also not supported the prosecution's case. These are changes in the circumstance. Hence, he prayed that the present petition be allowed and the petitioner be released on bail. 5. Mr. Ajit Sharma, learned Deputy Advocate General, for the respondent-State, submitted that the Court should not go into the veracity of the statement of the victim while deciding 4 2025:HHC:12448 the bail petition. The Court had earlier rejected the bail petition, and the subsequent petition only lies in case of a change in the circumstances. There is no change in the circumstances. 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. The parameters for granting bail were considered by the Hon’ble Supreme Court in Ramratan v. State of M.P., 2024 SCC OnLine SC 3068, wherein it was observed as follows: - “12. The fundamental purpose of bail is to ensure the accused's presence during the investigation and trial. Any conditions imposed must be reasonable and directly related to this objective. This Court in Parvez Noordin Lokhandwalla v. State of Maharastra (2020) 10 SCC 77 observed that though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. The relevant observations are extracted herein below: “14. The language of Section 437(3) CrPC which uses the expression “any condition … otherwise in the interest of justice”, has been construed in several decisions of this Court. Though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under 5 2025:HHC:12448 Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legitimately be imposed both in the context of bail and anticipatory bail.” (Emphasis supplied) 13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570, this Court discussed the scope of the discretion of the Court to impose “any condition” on the grant of bail and observed in the following terms: — “15. The words “any condition” used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance, effective in the pragmatic sense, and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such an extreme condition to be imposed.” (Emphasis supplied) 14. This Court, in Dilip Singh v. State of Madhya Pradesh (2021) 2 SCC 779, laid down the factors to be taken into consideration while deciding the application for bail and observed: “4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration while considering an application for bail are the nature of the accusation and the severity of the punishment in the case of conviction and the nature of the materials relied 6 2025:HHC:12448 upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; the reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial.” (Emphasis supplied) 8. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 9. It is undisputed that the petitioner had filed a bail petition earlier, which was registered as Cr.MP(M) No. 1860 of 2024 and was dismissed on 16.10.2024. 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, 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 7 2025:HHC:12448 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. 10. 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. 11. 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 8 2025:HHC:12448 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.” 12. 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.” 13. 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 9 2025:HHC:12448 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.” 14. 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. 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 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 10 2025:HHC:12448 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.” 15. 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. 16. The previous bail petition was dismissed on the ground that the petitioner was involved in the commission of a heinous offence. Further, the fact that the victim had not supported the prosecution's case was held to be irrelevant while deciding the bail petition. These circumstances have not changed. 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. Bail cannot be granted because there are some discrepancies in the deposition, which affect the credibility of the victim. It was observed: - 11 2025:HHC:12448 “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.” 17. Thus, the bail cannot be granted because the witnesses have not supported the prosecution's case. 18. No other point was urged. 19. There is no change in the circumstance, hence, the present petition fails, and the same is dismissed. 12 2025:HHC:12448 20. 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 5th May, 2025 (Chander)