1. The present successive bail application has been filed by the applicant - accused under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with FIR being C.R. No. I-109/2018 registered with Dehgam Police Station for offence under Sections 307, 506(2), 302 and 114 of the Indian Penal Code and Section 135 of the Gujarat Police Act.

2. Heard learned advocate, Mr. Bhargav Bhatt assisted by learned advocate, Mr. Kishan Chakwawala for the applicant and learned APP Mr. L.B. Dabhi for the respondent - State of Gujarat.

3. Learned advocate for the applicant submitted that this application is filed on the ground of change of circumstance. It is submitted that the applicant is in jail since 20.11.2018 and the trial is not yet commenced. It is submitted that the applicant was aged about 19 years when he was arrested. It is further submitted that the star witness of the prosecution viz., Ketansinh Baldevsinh Bihola has expired during the pendency of the trial and other three so-called eyewitnesses, who are arraigned as accused in the cross-FIR i.e. Pravinsinh Dashrathsinh Bihola, Vishal Vishnubhai Patel and Parth Vishnubhai Patel, have filed quashing petitions before this Court and in the said petitions, the concerned eyewitnesses have specifically stated that they were not present at the place of offence and they have no nexus/relation with the present offence. It is, therefore, submitted that when three so-called eyewitnesses have stated in the proceedings filed by them that they were not present at the place of incident, their statements cannot be relied upon. Learned advocate at this stage submitted that though this Court has rejected the application filed by the present applicant by assigning reasons vide order dated 07.08.2019, the present successive bail application is maintainable on the ground of change of circumstance.

4. Learned advocate for the applicant has placed reliance upon following decisions,

(1) Judgment in case of Babu Singh & Ors. Vs. The State of U.P., reported in AIR 1978 SC 1978;

(2) Judgment in case of Sujit Tiwari Vs. State of Gujarat, reported in (2020) 13 SCC 447 [LQ/SC/2020/126 ;] ">(2020) 13 SCC 447 [LQ/SC/2020/126 ;] [LQ/SC/2020/126 ;] ;

(3) Judgment in case of Union of India Vs. K.A. Najeeb, reported in (2021) 3 SCC 713 [LQ/SC/2021/58 ;] ">(2021) 3 SCC 713 [LQ/SC/2021/58 ;] [LQ/SC/2021/58 ;] .

5. Thus pointing out above facts and relying upon the aforesaid decisions, learned advocate has urged that this application be allowed.

6. On the other hand, learned APP has opposed this application and submitted that there is no change of circumstance after the rejection of earlier bail application filed by the present applicant in the month of August, 2019. It is further submitted that there are five eyewitnesses to the incident, whose statements are placed on record. It is further submitted that though one of the eyewitnesses, Ketansinh Baldevsinh Bihola has expired, his statement was recorded under Section 164 of the Code by the concerned Magistrate. It is further submitted that there are two other eyewitnesses viz., Kailashben Ranvirsinh Bihola and Ripal Alpeshsinh Bihola, whose statements are placed on record at Page Nos. 103 and 105 respectively of the compilation. Learned APP has thereafter contended that dying declaration of the deceased was also recorded, copy of which is placed on record at Page No. 144 of the compilation. Learned APP has also referred to postmortem report, copy of which is placed on record at Page No. 131 of the compilation, from which, it transpires that the deceased has sustained 19 injuries.

7. Learned APP has placed reliance upon following decisions,

(1) Judgment in case of Rajesh Ranjan Yadav @ Pappu Yadav Vs. CBI Through its Director, reported in (2007) 1 SCC 70 [LQ/SC/2006/1112] ;

(2) Judgment in case of Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav, reported in (2005) 2 SCC 42 [LQ/SC/2005/64] .

8. Learned APP has, therefore, urged that the applicant is arrested in connection with the FIR, which is filed under Section 302 of the IPC and merely because he is in jail since 2018, he cannot be enlarged on bail in the facts of the present case. It is further submitted that the prosecution is having apprehension that the applicant will not be available at the time of trial and the applicant will tamper with the witnesses. It is further submitted that other three eyewitnesses have filed quashing petitions before this Court in connection with cross-FIR, where they are accused, however, it appears that they have filed the said petitions with a view to take defence in the cross-FIR. It is further submitted that this Court has not yet passed any order in the said petitions and even notice is not issued though the said petitions are filed long back. Learned APP has urged that when there is ample material in the papers of the chargesheet against the present applicant and when this Court has rejected earlier application filed by the applicant under Section 439 of the Code by assigning reasons, this Court may not entertain this application.

9. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it would emerge that this is a successive bail application filed under Section 439 of the Code and prior to filing of this successive bail application, the applicant had filed Criminal Misc. Application No. 7935/2019 before this Court and this Court by an order dated 07.08.2019 rejected the said application by assigning detailed reasons, however as submitted by learned advocate for the applicant, the applicant has not challenged the said order before the Hon'ble Supreme Court.

10. At this stage, this Court would like to refer to the decision of the Hon'ble Supreme Court in case of Kalyan Chandra Sarkar (supra), wherein it has been observed in Paragraph Nos. 18, 19 and 20,

"18. It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. But even persons accused of non bailable offences are entitled for bail if the court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the court is satisfied for reasons to be recorded that in spite of the existence of prima facie case there is a need to release such persons on bail where fact situations require it to do so. In that process a person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In such cases if the circumstances then prevailing requires that such persons to be released on bail, in spite of his earlier applications being rejected, the courts can do so.

19. The principles of res judicata and such analogous principles although are not applicable in a criminal proceeding, but 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 convassed earlier would not be permitted to be re-agitated on the same grounds, as the same it would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting.

20. The decisions given by a superior forum, undoubtedly, is binding on the subordinate fora on the 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 the guaranty conferred on a person under Article 21 of the Constitution of India, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by courts earlier including the Apex Court of the country."

Thus from the aforesaid observation, it is clear that the principles of res judicata and such analogous principles although are not applicable in a criminal proceeding and still the courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our country. Ordinarily, the issues which had been convassed earlier, would not be permitted to be re-agitated on the same grounds, as the same would lead to a speculation and uncertainty in the administration of justice.

11. From the chargesheet papers, it is revealed that there are five eyewitnesses to the incident, who have specifically stated that the applicant was present at the place of incident with knife along with co-accused, Naransinh and have caused injuries to the deceased on the vital part of the body. From the postmortem report, it is revealed that the deceased sustained 19 injuries on his body, which were caused with knife and the cause of death is cardio respiratory arrest due to stab injuries over body. Further if the dying declaration given by the deceased is carefully seen, it transpires that the deceased has given the name of the applicant in the dying declaration. It is stated that the applicant came with knife and when the quarrel took place, the accused, Naransinh inflicted knife blows to the deceased and there were 2-3 persons. Thus if the dying declaration is read along with the statements given by five eyewitnesses, it is prima facie revealed that the applicant inflicted knife blow to the deceased on the vital part of the body. Thus, prima facie case is made out against the applicant for commission of alleged offences.

12. As contended by learned advocate for the applicant, one of the eyewitnesses viz., Ketansinh Baldevsinh Bihola has expired. However, learned APP has pointed out that the statement of the said witness is recorded under Section 164 of the Code by the concerned Magistrate and during the course of trial, the said Magistrate can be examined as witness. Further, it is the case of the applicant that three other so-called eyewitnesses have filed quashing petitions under Section 482 of the Code for quashing and setting aside the cross-FIR filed against the said eyewitnesses. However at this stage, it is pertinent to note that this Court has not even issued notice in the said petitions. Further when the version given by the said three persons/eyewitnesses is supported by other eyewitnesses also, filing of the petition by the said eyewitnesses in the cross-FIR would not render any assistance to the present applicant at this stage.

13. In case of Rajesh Ranjan Yadav @ Pappu Yadav (supra), the Hon'ble Supreme Court has observed in Paragraph Nos. 10 and 16 as under,

"10. In our opinion none of the aforesaid decisions can be said to have laid down any absolute and unconditional rule about when bail should be granted by the Court and when it should not. It all depends on the facts and circumstances of each case and it cannot be said there is any absolute rule that because a long period of imprisonment has expired bail must necessarily be granted.

16. We are of the opinion that while it is true that Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the Court has also to take into consideration other facts and circumstances, such as the interest of the society."

Thus from the aforesaid observations made by the Hon'ble Supreme Court, it is clear that the Hon'ble Supreme Court has specifically held that the the fundamental right to individual liberty is important, however at the same time, balance has to be struck between the right to individual liberty and the interest of society.

14. The decisions upon which reliance has been placed by learned advocate for the applicant would not render any assistance to the applicant in the facts of the present case.

15. At this stage, it is also pertinent to note that the trial has commenced against the applicant and the prosecution has specifically shown apprehension that if the applicant is enlarged on bail, he will not be available at the time of trial and he will tamper with the witnesses. Thus when the prima facie case is made out against the present applicant, in the facts of the present case as discussed hereinabove, this Court is not inclined to exercise the discretion in favour of the present applicant.

16. Accordingly, the present application is rejected. Rule is discharged.