Gujarat High Court
Shivam Mohansingh Rajput vs State Of Gujarat on 8 July, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1128 of 2025
(REGULAR BAIL - AFTER CHARGESHEET)
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SHIVAM MOHANSINGH RAJPUT
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR SURAJ A SHUKLA(7185) for the Appellant(s) No. 1
NOTICE NOT RECD BACK for the Respondent(s) No. 2
MR HARDIK SONI AP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 08/07/2025
ORAL ORDER
1. The present appeal, which is a successive appeal
preferred after the withdrawal of earlier appeal
being Criminal Appeal No.522/2023 by an order
dated 08.08.2023, is filed under Section 14-A of
the Scheduled Castes & Scheduled Tribes
(Prevention of Atrocities) Act for regular bail in
connectio1n with the FIR being C.R.
No.11210056201449/2020 registered with the Dindoli
Police Station, Surat for the alleged offences as
mentioned in the FIR.
2. Heard learned advocate, Mr. Suraj Shukla for the
appellant and learned APP Mr. Hardik Soni for the
respondent - State of Gujarat.
3. Learned advocate submitted that this is a
successive appeal preferred by the appellant after
the withdrawal of earlier appeal being Criminal
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Appeal No.522/2023 by an order dated 08.08.2023
only on the ground that there is delay in trial
and period of incarceration. He submitted that the
appellant has been arrested by the Police in
connection with the aforesaid FIR on 08.06.2020
and since then, he is in judicial custody i.e. he
is in jail since last more than five years,
however, there is no progress in trial and same is
pending at snail speed and there is no possibility
to conclude the same within near future, therefore
for indefinite period, he may not be kept behind
the bar, otherwise, liberty granted under Article
21 of the Constitution of India would be violated.
He also submitted that in view of the recent
decisions of the Hon'ble Supreme Court, it is
well-established principle that "bail is the rule
and refusal is an exception". It is, therefore,
urged that considering the facts of the case as
also considering the period of incarceration and
on the ground of parity, the appellant may be
granted bail by imposing suitable conditions.
4. On the other hand, learned APP has objected the
grant of present appeal looking to the nature and
gravity of the offence. He submitted that the role
of the present appellant is clearly spelt out from
the body of the complaint as well as papers of the
chargesheet. He submitted that the present appeal
is a successive appeal after the withdrawal of
earlier bail appeal. He submitted that in fact, at
the time of withdrawing earlier appeal, no liberty
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was reserved to approach again. He submitted that
as stated by learned advocate for the appellant,
the present appeal is filed on two counts i.e. one
on the ground of delay and second on the ground of
parity as co-accused have already been enlarged on
bail. He, however, submitted that on both counts,
the present appeal may not be entertained as the
trial has already proceeded further as out of
total 86 witnesses, 7 witnesses have been examined
and thus, the trial is in progress, whereas the
co-accused, who were enlarged on bail, were
released before the withdrawal of earlier appeal
preferred by the appellant, therefore, the parity
may not be applicable in the present case. He
submitted that in fact, the present appeal is
preferred without disclosing any change in the
circumstances except delay in trial and the
appellant has failed to show any change in the
circumstances and the reasons, which are mentioned
in the memo of application, were at all available
at the earlier point of time when earlier appeal
was withdrawn. He further submitted that as stated
above, this is a successive appeal and, hence,
change in the circumstance is required to be
pointed out by learned advocate but he has failed
to show and in absence of any changed
circumstances, this appeal cannot be entertained
and it may be dismissed.
5. I have heard the learned advocates appearing on
behalf of the respective parties and perused the
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papers of the investigation and considered the
allegations levelled against the appellant and the
role played by the appellant. I have also
considered the reasoning given by the concerned
court while rejecting the bail application and the
affidavit filed by the IO opposing the said
application.
6. It is the settled position of the law that, at
this juncture detailed discussion of evidence and
canvassing of the allegations contained in FIR as
well as affidavit of the concerned Investigating
Officer or the merits of the case as well, is not
necessary and should be avoided.
7. So far as the maintainability of a successive
appeal is concerned, it is no longer res-integra
that the same is maintainable. However, the
question, which arises for consideration of this
Court, is as to whether without any fresh new and
changed circumstances, a Court should consider a
subsequent bail application ignoring its previous
order rejecting the previous bail application or
not. In my considered opinion, the same would not
be possible. A subsequent bail application is
maintainable but consideration of the prayer of
bail would depend on the facts as to whether fresh
and new grounds have been pleaded and are
available or not.
8. It is a well settled principle of law that when
the successive application comes before the Court,
the Court would be very conscious while
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considering the same. It is also a settled
position of law that successive bail applications
are permissible under the changed circumstances
and the changed circumstances must be substantial
one which has direct impact on the earlier
decision and not merely a cosmetic changes which
are of little or no consequences. As held by the
Apex Court in State of Maharashtra Vs. Captain
Buddhikota Subha Rao, reported in AIR 1989 SC
2292, that successive bail application can be
entertained by the Court when substantial change
is established by the accused, which would entitle
him for getting bail in successive bail
application. The Court should not pass the order
of releasing him 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. The Apex Court in the case of
Kalyanchandra Sarkar Vs. Rajesh Ranjan, reported
in (2005) 2 SCC 42 while dealing with the issue of
successive bail application has observed that
without change in the circumstances, the
subsequent bail application would be deemed to be
seeking a review of the earlier rejection order
which is not permissible under the criminal law.
The Hon'ble Supreme Court has further observed
that while entertaining such undefined consequent
bail application, the Court has a duty to consider
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the reasons and grounds on which the earlier bail
application was rejected and what are the fresh
grounds which persuade it warranting the
evaluation and consideration of the bail
application afresh and to take a view different
from one taken in the earlier application.
9. At this stage, I would like to put reliance upon
the decision of the Hon'ble Supreme Court in case
of Central Bureau Of Investigation Vs. V.Vijay Sai
Reddy, reported in (2013) 7 SCC 452, wherein the
Hon'ble Supreme Court has observed as under,
"While granting bail, the court has to keep
in mind the nature of accusations, the nature
of evidence in support thereof, the severity
of the punishment which conviction will
entail, the character of the accused,
circumstances which are peculiar to the
accused, reasonable possibility of securing
the presence of the accused at the trial,
reasonable apprehension of the witnesses
being tampered with, the larger interests of
the public/State and other similar
considerations. It has also to be kept in
mind that for the purpose of granting bail,
the Legislature has used the words
"reasonable grounds for believing" instead of
"the evidence" which means the Court dealing
with the grant of bail can only satisfy it as
to whether there is a genuine case against
the accused and that the prosecution will be
able to produce prima facie evidence in
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support of the charge. It is not expected, at
this stage, to have the evidence establishing
the guilt of the accused beyond reasonable
doubt."
10. Having considered the submissions canvassed by
learned advocate for the parties and having gone
through the record available on record, it is
found out that that the appellant - accused in
connivance with other accused, have hatched
conspiracy to eliminate the deceased and as a part
of conspiracy, the accused have formed an unlawful
assembly and reached the place of occurrence armed
with deadly weapons, where they have assaulted the
deceased mercilessly with deadly weapons, as a
result of which, the deceased succumbed to the
injuries on the spot and entire incident was
recorded in the CCTV footage. It is true that just
to hide their identity, the accused have covered
their face with handkerchief but the witnesses
have identified the accused on the basis of their
physical movement and thus, the presence of the
accused at the place of occurrence is established.
I have also considered the role attributed to the
appellant at the time of commission of crime,
which is grave in nature in comparison to other
accused.
11. I have also considered the report submitted by the
concerned Judge, which was called for by the
Coordinate Bench of this Court in connection with
other appeal arising out of the present FIR and on
examination of the same, it is found out that the
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chargesheet was filed on 09.09.2020 and,
thereafter, due to corona pandemic, the trial
could not be proceeded further till 14.06.2021
and, thereafter, the trial was pending for
production of documents during the period between
14.06.2021 to 02.06.2022, thereafter, accused
concerned had sought for advocate from legal aid
and accordingly, advocate from legal aid was
provided to the accused no.4 and, thereafter, the
accused nos.2 and 3 had filed discharged
application which was decided on 16.12.2022 and,
thereafter, charge was framed, however framing of
the charge, for one reason or other, the accused
remained absent by making excuses, therefore,
warrants were issued, which were not served
despite repeated requests, therefore, an
application for separation of trial was submitted
and, thereafter, the trial has proceeded further
and as per the said report, out of total 57
witnesses, 7 witnesses have been examined. Thus
from the above report, it seems that there is no
delay in trial as submitted and it was just
because of the tactic adopted by the accused by
filing applications one after another and by not
remaining present in trial but it seems that as
the trial has proceeded, it would be concluded in
near future. Therefore, the contention of learned
advocate for the appellant with regard to delay in
trial is misconceived.
12. At this stage, I would like to refer to the
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decision of the Hon'ble Supreme Court in case of
State of Maharashtra Vs. Buddhikota Subha Rao,
reported in 1989 Supp (2) SCC 605, wherein it has
been held by the Apex Court that once a bail
application was rejected there was no question of
granting a similar prayer. Granting it would be
virtually overruling the earlier decision without
there being a change in the fact-situation. A
substantial change is one which has a direct
impact on the earlier decision and not merely
cosmetic changes which are of little or no
consequence. It has been held as under :-
"7. Liberty occupies a place of pride in our
socio-political order. And who knew the
value of liberty more than the founding
fathers of our Constitution whose liberty
was curtailed time and again under
Draconian laws by the colonial rulers. That
is why they provided in Article 21 of the
Constitution that no person shall be
deprived of his personal liberty except
according to procedure established by law.
It follows therefore that the personal
liberty of an individual can be curbed by
procedure established by law. The Code of
Criminal Procedure, 1973, is one such
procedural law. That law permits
curtailment of liberty of anti-social and
anti-national elements. Article 22 casts
certain obligations on the authorities in
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the event of arrest of an individual
accused of the commission of a crime
against society or the Nation. In cases of
undertrials charged with the commission of
an offence or offences the court is
generally called upon to decide whether to
release him on bail or to commit him to
jail. This decision has to be made, mainly
in non-bailable cases, having regard to the
nature of the crime, the circumstances in
which it was committed, the background of
the accused, the possibility of his jumping
bail, the impact that his release may make
on the prosecution witnesses, its impact on
society and the possibility of retribution,
etc. In the present case the successive
bail applications preferred by the
respondent were rejected on merits having
regard to the gravity of the offence
alleged to have been committed. One such
Application No. 36 of 1989 was rejected by
Suresh, J. himself. Undeterred the
respondent went on preferring successive
applications for bail. All such pending
bail applications were rejected by Puranik,
J. by a common order on 6-6-1989.
Unfortunately, Puranik, J. was not aware of
the pendency of yet another bail
application No. 995 of 1989 otherwise he
would have disposed it of by the very same
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common order. Before the ink was dry on
Puranik, J.'s order, it was upturned by the
impugned order. It is not as if the court
passing the impugned order was not aware of
the decision of Puranik, J.; in fact there
is a reference to the same in the impugned
order. Could this be done in the absence of
new facts and changed circumstances? What
is important to realise is that in Criminal
Application No. 375 of 1989, the respondent
had made an identical request as is obvious
from one of the prayers (extracted earlier)
made therein. 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
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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. In
such a situation the proper course, we
think, is to direct that the matter be
placed before the same learned Judge who
disposed of the earlier applications. Such
a practice or convention would prevent
abuse of the process of court inasmuch as
it will prevent an impression being created
that a litigant is avoiding or selecting a
court to secure an order to his liking.
Such a practice would also discourage the
filing of successive bail applications
without change of circumstances. Such a
practice if adopted would be conducive to
judicial discipline and would also save the
court's time as a judge familiar with the
facts would be able to dispose of the
subsequent application with despatch. It
will also result in consistency. In their
view that we take we are fortified by the
observations of this Court in para 5 of the
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judgment in Shahzad Hasan Khan v. Ishtiaq
Hasan Khan [(1987) 2 SCC 684] . For the
above reasons we are of the view that there
was no justification for passing the
impugned order in the absence of a
substantial change in the fact-situation.
That is what prompted Shetty, J. to
describe the impugned order as 'a bit out
of the ordinary'. Judicial restraint
demands that we say no more.
(emphasis supplied)
13. At this stage, I would also like to refer to the
decision of the Hon'ble Supreme Court in case of X
Vs. State of Rajasthan & Anr., delivered in
Special Leave Petition (Criminal) No.13378 of
2024, wherein the Hon'ble Supreme Court, while
considering the application for bail, has opined
that once the trial commences, the High Court
should not exercise the discretion as it would be
fatal to the prosecution case. Paragraph No.16 of
the said decision reads as under,
"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 to
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 release of
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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 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 right of
the accused to have a speedy trial has been
infringed."
14. At this stage, I would like to put reliance upon
the decision of the Hon'ble Apex Court in the case
of Rajesh Ranjan Yadav @ Pappu Yadav Vs. CBI
Through its Director, reported in (2007) 1 SCC 70,
wherein, the Apex Court has laid down that, while
considering an application for regular bail, the
Courts shall have to take into consideration, the
following aspects,
(a) The nature of accusation and the severity of
punishment in case of conviction and the
nature of supporting evidence;
(b) Reasonable apprehension of tampering with the
witness or apprehension of threat to the
complainant;
(c) Prima facie satisfaction of the court in
support of the charge;
15. The Hon'ble Apex Court, further, observed at
Paragraphs-10 and 16 thus;
"10. In our opinion none of the aforesaid
decisions can be said to have laid down any
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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."
16. Apart from the above, I have also considered
merits of the case, which has already been
discussed while considering earlier bail appeal
preferred by the appellant and found the active
involvement of the appellant in the commission of
crime in connivance with other co-accused.
Therefore on merit also, the appellant has no
case.
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17. Over and above that, strong apprehension has been
shown by prosecution that if the appellant is
released on bail then, there is possibility of
tampering with the evidence and fleeing away from
the trial. Therefore taking into consideration the
complicity of the appellant, there being
apprehension of the witnesses being influenced as
the trial has already begun, severity of
punishment as drawn from the nature and gravity of
the accusations, after taking due consideration of
the submissions of the parties, and the settled
case law in various judgments passed by the
Hon'ble Supreme Court and various Hon'ble High
Courts, without expressing any opinion on the
merits of the case, I am of the opinion that it is
not a fit case for bail, that too, in a successive
application.
18. Accordingly, the present appeal is dismissed.
Notice is discharged. However, it is expected that
the trial court concerned shall proceed with the
trial and conclude the same as early as possible.
19. Needless to say that any expression of opinion
given in this order does not mean an expression of
opinion on the merits of the case and the trial
Court will not be influenced by any observations
made therein.
(DIVYESH A. JOSHI, J.)
Gautam
