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2026 DAILYLAW 16901 (HP)

S v. State of Himachal Pradesh

2026-03-31

Rakesh Kainthla

body2026
JUDGMENT : Rakesh Kainthla, J. The petitioner has filed the present petition for seeking regular bail in F.I.R. No. 57 of 2024, dated 07.10.2024, registered for the commission of offences punishable under Sections 49 and 64 of Bhartiya Nyaya Sanhita (in short ‘BNS’) at Police Station Khudiyan, District Kangra, H.P. 2. It has been asserted that the petitioner was falsely implicated. He was arrested on 08.10.2024. The charge-sheet was filed on 20.02.2025. The charges were framed on 28.05.2025. The prosecution cited 35 witnesses in the original charge-sheet and 13 witnesses in the supplementary charge-sheet. The victim was examined, and the matter was listed on 19.12.2025 before the learned Trial Court. The petitioner had earlier filed a bail petition before this Court, which was registered as Cr.MP(M) No. 446 of 2025. The petitioner has remained behind bars for one year and two months. The petitioner’s right to a speedy trial is being violated. The petitioner is the sole earner of the family. He is a permanent resident of the district Kangra, and there is no chance of his absconding. He would abide by all the terms and conditions that the Court may impose. Hence, it was prayed that the present petition be allowed and the petitioner be released on bail. 3. The petition is opposed by filing a status report asserting that the victim (name being withheld to protect her identity) is the wife of the petitioner. She had gone to the rented room of the petitioner in village Theel on 05.10.2024. Suresh Chand, a friend of her husband, was also residing in the same room. The petitioner told the victim that Suresh ties the sacred thread. Suresh told the petitioner that the victim would have to remove her clothes. The petitioner asked the victim to remove her clothes. She refused, but the petitioner forcibly removed her clothes. The petitioner had physical relations with the victim, and thereafter, he told his friend to maintain physical relations with the victim. She refused, but Suresh raped her. She narrated the incident to her mother. She was taken to her matrimonial home. She narrated the incident to her sister-in-law, who accompanied her to the police station. The police registered the FIR and investigated the matter. The statement of the victim was recorded before the learned Judicial Magistrate, First Class, Dehra. The recoveries were effected at the instance of the petitioner and Suresh Chand. She was taken to her matrimonial home. She narrated the incident to her sister-in-law, who accompanied her to the police station. The police registered the FIR and investigated the matter. The statement of the victim was recorded before the learned Judicial Magistrate, First Class, Dehra. The recoveries were effected at the instance of the petitioner and Suresh Chand. As per the report of analysis, the DNA of Suresh Kumar matched the DNA found in the vaginal swab, and the DNA of Suresh Chand was found on the salwar of the victim and the bed sheet. The challan was filed before the Court, and the matter is now listed before the Court of the learned Additional Sessions Judge, Dehra, District Kangra, H.P. on 21.04.2026. 4. I have heard M/s Panku Chaudhary and Rakesh Chaudhary, learned counsel for the petitioner and Mr Lokender Kutlehria, learned Additional Advocate General, for the respondent/State 5. Mr Panku Chaudhary, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. The statements of the victim and her father have been recorded. The prosecution has cited 48 witnesses. The trial is not likely to conclude soon. The petitioner is a permanent resident of the district Kangra, and there is no chance of his absconding. The petitioner would abide by all the terms and conditions that the Court may impose. Hence, it is prayed that the present petition be allowed and the petitioner be released on bail. 6. Mr Lokender Kutlehria, learned Additional Advocate General, for the respondent/State, submitted that the petitioner had earlier filed a bail petition, which was dismissed by this Court and the present petition only lies when there is a change in the circumstances. The petitioner is the husband of the victim, and he would intimidate the witnesses in case of his release on bail. Therefore, he prayed that the present petition be dismissed. 7. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 8. It is undisputed that the petitioner had earlier filed a petition, which was registered as Cr.MP(M) No. 446 of 2025, and was dismissed by this Court on 25.03.2025. It was held in State of Maharashtra. Captain Buddhikota Subha Rao (1989) Suppl. 8. It is undisputed that the petitioner had earlier filed a petition, which was registered as Cr.MP(M) No. 446 of 2025, and was dismissed by this Court on 25.03.2025. It was held in State of Maharashtra. 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 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. 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. 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.” 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. 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. 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 circumstances. 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 a 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. 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 based on the change in the circumstances, and it is impermissible to review the order passed by the Court. 14. The Court had earlier noticed that the allegations against the petitioner are heinous. He is the husband of the victim. He had abetted the commission of rape upon the victim by his friend. This fact was duly corroborated by the report of analysis, mentioning that the petitioner’s DNA matched the DNA taken from the victim’s vaginal swab. The DNA of the petitioner’s friend matched the DNA taken from the Salwar and bed-sheet. The nature of the offence was held to be heinous. These considerations have not changed. 15. It was submitted that the victim has not supported the prosecution’s case, and the petitioner is entitled to bail on this consideration. This submission will not help the petitioner. 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: - “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 to entertain 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. 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 conclusion, which may either result in the conviction of the Accused or the 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 if 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. Similarly, it was held by this Court in Suraj Singh v. State of H.P. , 2022 SCC OnLine HP 268 that the Court exercises bail jurisdiction cannot appreciate the contradictions in the evidence. It was observed: 10. Petitioner has placed reliance on the statements of witnesses already recorded by the learned Special Judge, in support of his argument to the effect that, from perusal of these statements, reasonable grounds can be entertained for concluding prima facie innocence of the petitioner. The arguments raised on behalf of the petitioner deserve to be rejected for the reason that this Court, while dealing with the bail application, will not appreciate the evidence being recorded during the trial. Undisputedly, only some of the witnesses out of the entire list of witnesses relied upon by the prosecution have been examined. In these circumstances, it is not prudent to form any opinion as to the innocence or guilt of the petitioner on the basis of such partial evidence. 17. Therefore, the petitioner cannot be held entitled to bail simply because the victim has not supported the prosecution’s case. 18. It was submitted that the petitioner has remained behind bars for more than one year, and the he is entitled to bail because of the violation of his right to a speedy trial. The order- sheet shows that the witnesses are being summoned. Two witnesses were examined, and one witness was given up. 18. It was submitted that the petitioner has remained behind bars for more than one year, and the he is entitled to bail because of the violation of his right to a speedy trial. The order- sheet shows that the witnesses are being summoned. Two witnesses were examined, and one witness was given up. The matter is now listed for recording the statements of prosecution witnesses on 24.04.2026 and 25.04.2026. The fact that the matter is listed on two consecutive dates shows the concern of the learned Trial Court to expeditiously dispose of the matter; therefore, the petitioner cannot be released on bail because of a violation of his right to a speedy trial; however, the petitioner is at liberty to approach the learned Trial Court in case the trial is not concluded expeditiously. 19. In view of the above, the present petition fails, and it is dismissed. 20. The observations made hereinbefore shall remain confined to the disposal of the petition and will have no, bearing whatsoever, on the merits of the case.