Ashwani Kumar Vs State of Hp

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP No. 1418 of 2025 in Cr. Appeal No. 475 of 2024 Reserved on: 08.08.2025 Decided on: 13.08.2025 ________________________________________________ Ashwani Kumar ....applicant/appellant Versus State of H.P. .…non-applicant/respondent

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Coram

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The Hon’ble Mr. Justice Sushil Kukreja, Judge.

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Whether approved for reporting?¹

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_________________________ For the applicant/appellant:	____________________ Mr. Sangram Singh Chandel, Advocate.
For the respondent :	Mr. Anish Banshtu and Ms. Swati Draik, Deputy Advocates General.

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Sushil Kukreja, Judge

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This order shall dispose of an application filed by the applicant/appellant under Section 430 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “BNSS”), seeking suspension of sentence awarded by the learned Additional Sessions Judge Nalagarh, District Solan, H.P., vide judgment of conviction, dated 23.07.2024 and order of sentence dated

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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24.07.2024, passed in Sessions Trial No. 14-NL/7 of 2014,for the commission of offences punishable under Sections 279, 304AA of the Indian Penal Code (for short “IPC”) and Sections 181, 185 & 187 of the Motor Vehicles Act (for short“MV Act”).

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The learned Counsel for the appellant/applicant contended that a false case has been registered against the applicant and learned trial Court while passing the impugned judgment of conviction did not consider the fact that PW-1,ASI Ranjeet Singh, who was the eye witness of the incident and the complainant, was the Investigating Officer of the present case and no independent witness was associated by the police. Therefore, the investigation being carried out by the same person, who was eye witness of the incident, caused prejudice to the applicant and made false investigation in favour of the deceased, being a police official. He also contended that as per the prosecution case, information qua the alleged accident was given by the Investigating Officer (PW-1) to Police Station, Baddi and to Police Control Room through wireless communication at the

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time of alleged accident, i.e. 09:45 P.M., however, neither any FIR was registered by the police of Police Station Baddi on the aforesaid intimation by the Investigating Officer nor any efforts were made to take the deceased to hospital. He further contended that the learned trial Court based its findings only on the forensic report, which cannot be deemed as the conclusive evidence, as there is discrepancy in the number of alleged seals in urine sample of the applicant, taken by the doctor. He further contended that neither the samples after postmortem of the deceased were sent to the forensic examination, qua consumption of alcohol by deceased, nor the doctor, who had conducted the postmortem of deceased, i.e. PW-9, mentioned in postmortem report (Ext. PW-9/A) that injuries could be caused due to road accident. He further contended that the learned trial Court erred in holding that recovery of the alleged truck was from the applicant without considering the documentary evidence on record. He further contended that the whole case of the prosecution was that the accident had occurred on account of rash and negligent driving of the

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applicant, however, there was no injury on his person, which shows that the prosecution story is concocted one. Therefore, he prayed that the sentence imposed upon the applicant/appellant by the learned Trial Court be suspended in the interest of justice and fair play.

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Per contra the learned Deputy Advocate General contended that the present application filed by the applicant/appellant is the successive one, which is liable to be dismissed, as there is no change in circumstances after the dismissal of the earlier application seeking suspension of sentence. He further contended that the appellant/applicant is not entitled for suspension of sentence, as the prosecution has succeeded in proving the guilt of the accused beyond reasonable doubt by leading relevant and cogent evidence and the judgment of conviction passed by the learned trial Court does not suffer from any infirmity. He also contended that the applicant has been convicted after full fledged trial, as such, there is no presumption of innocence in his favour.

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I have heard the learned counsel for the applicant/appellant as well as learned Deputy Advocate

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General and have also gone through the material available on record.

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It is a settled law that discretion at the time of considering the plea of the accused for suspension of sentence pending final hearing of appeal has to be exercised judiciously and not as a matter of course as once the conviction is recorded, the presumption of innocence is no longer available to the appellant. A perusal of Section 430 of The Bharatiya Nagarik Suraksha Sanhita, 2023, would show that suspension of sentence during pendency of appeal is not the absolute right of the convict. The discretion to suspend the sentence vests in the court and it is required to be exercised judicially keeping in view all facts and circumstances and the nature of offence. The Court has to exercise this discretion with utmost care and caution, balancing one's right and liberty on one hand and the interest of the society on the other.

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In the case on hand, the allegations against the applicant are that on 13.05.2013, he was driving the vehicle in question in a rash and negligent manner in a very high

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speed under the influence of liquor and had hit Constable Sumit Sain, who was going to duty on his Scooter, due to which, he died on the spot. During medical examination of the applicant, his blood and urine samples were taken and as per the report of FSL, quantity of alcohol found in his urine was 172.50 mg% and quantity of alcohol found in his blood was 157.84 mg%, much more than 30 mg % i.e. the limit as prescribed under Section 185 of the Motor Vehicles Act. After conclusion of trial, the learned trial Court found the applicant guilty and convicted him as aforesaid.

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Pertinently, the present is the successive application filed by the applicant seeking suspension of sentence. Earlier, the applicant had preferred an application being Cr. MP No. 3821 of 2024 before this Court, seeking suspension of sentence, which came to be dismissed vide order dated 10.01.2025.

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There is no doubt that the subsequent bail /suspension application is maintainable, however, there must be some material change in the facts and circumstances or the law which would entitle the accused for getting bail in

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successive bail application. The parameters to be observed by High Court while dealing with the successive application for grant of bail have been considered by the Hon’ble Apex Court in State of Maharashtra Vs. Captain Buddhikota Subha Rao , AIR 1989 SC 2292 , wherein it has been held that successive bail application can be entertained by the Court when substantial change is established by the accused. The Court should not pass the order of releasing the accused on bail in successive bail application merely establishing some cosmetic change between time gap of two applications. There should be drastic change during the period between two applications, which would entitle the accused for bail.

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In State of M.P vs. Kajad (2001) 7 SCC 673 Hon'ble Supreme Court categorically considered that when there are no changed circumstances, the successive bail application is nothing but review of the earlier application which cannot be maintainable. The relevant portion of the aforesaid judgment reads as under:

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“8. It has further to be noted that the factum of the rejection of his earlier bail application bearing Misc. case

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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 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) and various other judgments.”

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10. In the case of Kalyan Chandra Sarkar,vs Rajesh

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Ranjan (2004) 7SCC 528 Hon'ble Supreme Court held that even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. The relevant paras are reproduced as under:

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"19. The principles of res judicata and such analogous principles although are not applicable in a criminal proceeding, still the courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our country. The findings of a higher court or a coordinate Bench must receive serious consideration at the hands of the court entertaining a bail application at a later stage when the same had been rejected earlier. In such an event, the courts must give due weight to the grounds which weighed with the former or higher court in rejecting the bail application. Ordinarily, the issues which had been canvassed earlier would not be permitted to be reagitated on the same grounds, as the same would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting.

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20. The decisions given by a superior forum, undoubtedly, are binding on the subordinate fora on the

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same issue even in bail matters unless of course, there is a material change in the fact situation calling for a different view being taken. Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Therefore, we are not in agreement with the argument of learned counsel for the accused that in view of the guarantee conferred on a person under Article 21 of the Constitution, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by the courts earlier, including the Apex Court of the country.

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11. Similar view has been taken by Hon'ble Supreme

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Court in State of Tamilnadu vs. S.A.Raja (2005) 8 SCC 380 wherein it has been held that:

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“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 the bail applications without there being any change of circumstances would lead to bad precedents.”

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Taking into consideration the position of law, as

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can be gathered from various judgments of the Hon’ble

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Supreme Court, it is very clear that successive

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bail/suspension applications are permissible under the changed circumstances, but the change of circumstances must be substantial one, which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. Without the change in the circumstances, the subsequent bail/suspension application would be deemed to be seeking review of the earlier rejection order, which is not permissible under criminal law. While entertaining such subsequent applications, the Court has a duty to consider the reasons and grounds on which the earlier application was rejected and what are the fresh grounds which persuade it warranting the evaluation and consideration of the application afresh and to take a view different from the one taken in the earlier application. There must be change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete.

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This Court, confronted Mr. Sangram Singh Chandel, learned counsel for the applicant/appellant, to point out the change in circumstances after the dismissal of the

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earlier application. However, the learned counsel for the applicant/appellant, has failed to point out any substantial change in the circumstances after the dismissal of his earlier application, which would entitle the applicant/appellant for release on bail.

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Hence, in view of the facts and circumstances of the present case, this Court is of the view that after the dismissal of the earlier application, there is no substantial change in the circumstances which would entitle the petitioner to file the present application. Therefore, in absence of any changed circumstances, the present successive application seeking suspension of sentence cannot be entertained.

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