Gujarat High Court
Akbar Valimamad Sodha vs State Of Gujarat on 29 September, 2025
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R/CR.MA/18054/2025 ORDER DATED: 29/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 18054 of 2025
(FOR SUCCESSIVE REGULAR BAIL - AFTER CHARGESHEET)
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AKBAR VALIMAMAD SODHA
Versus
STATE OF GUJARAT
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Appearance:
MS TASNIM A ZABUAWALA(10756) for the Applicant(s) No. 1
MR VISHVARAJSINH D VAGHELA for the Respondent(s) No. 1
MR HARDIK SONI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 29/09/2025
ORAL ORDER
1. The present application, which is a successive
bail application preferred by the applicant after
the withdrawal of earlier bail application being
Criminal Misc. Application No.823/2024 by an order
dated 22.03.2024, is filed under Section 439 of
the Code of Criminal Procedure, 1973, for regular
bail in connection with the FIR being C.R.
No.11993010230133/2023 registered with the Rapar
Police Station for the alleged offences as
mentioned in the FIR.
2. Learned advocate, Mr. Zabuawala appearing for the
applicant submitted that this is a successive bail
application preferred by the applicant in view of
the liberty granted by this Court while passing an
order dated 22.03.2024 in Criminal Misc.
Application No.823/2024 to the effect that the
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applicant is at liberty to file fresh application
if the trial does not concluded within 12 months.
He submitted that in fact, there is no progress in
the trial, which led the applicant to file present
application. He referred to the Rojkam produced on
record and submitted that on 05.12.2024, charge
was framed and, thereafter, no substantial
progress had taken place. He submitted that at the
time of submission of chargesheet, the prosecution
has put reliance upon the evidence of total 35
witnesses, out of which, only 4 witnesses have
been examined. He submitted that for no fault on
the part of the applicant, the applicant has to
remain behind the bar for indefinite period. In
support of this submission, he has placed reliance
upon the recent decisions of the Hon'ble Supreme
Court and submitted that in number of cases, the
Hon'ble Supreme Court has considered the period of
incarceration spent by the accused concerned and
released him on bail imposing suitable conditions
and here in the present case, the applicant is in
jail since 18.06.2023 and thus, more than two
years have been passed. He submitted that as per
the judicial pronouncements 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, the applicant may be granted bail
by imposing suitable conditions.
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3. On the other hand, learned APP has objected the
grant of present application looking to the nature
and gravity of the offence. He submitted that this
is a successive bail application preferred by the
applicant but except the delay in trial, there is
no any other change circumstances. He submitted
that in fact, the applicant is involved in a
serious offence of murder, therefore if the
applicant is released on bail, in that event,
there is possibility of tampering with the
evidence and hampering with the witnesses,
therefore, no discretion may be exercised as trial
is going on, otherwise, it would affect the trial.
It is, therefore, urged that as stated above, this
is a successive bail application 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 application cannot be
entertained and it may be rejected.
4. Learned advocate for the original complainant has
also opposed the present application and submitted
that he is adopting the submissions canvassed by
learned APP. He, however, submitted that in fact,
there is no change circumstance pointed out by
learned advocate for the applicant except delay in
trial, therefore, the present application may not
be considered. He submitted that in fact, the
trial is in progress and it would be concluded
within near future. He submitted that at the most,
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direction may be issued upon the concerned court
for expeditious disposal of trial but as the
applicant is involved in serious offence of
murder, he is not entitled for any relief as
prayed for.
5. I have heard the learned advocates appearing on
behalf of the respective parties and perused the
papers of the investigation and considered the
allegations levelled against the applicant and the
role played by the applicant. 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 bail
application 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
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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
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
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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
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,
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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
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. It is found out from the arguments canvassed by
learned advocate for the applicant that main
argument of learned advocate for the applicant is
with regard to delay in trial and period of
incarceration spent by the applicant in jail and
liberty guaranteed under Article 21 of the
Constitution of India relying upon the recent
decisions of the Hon'ble Supreme Court. It is,
however, required to be noted that except above
facts, learned advocate for the applicant has
failed to point out any chance in circumstances.
Therefore in absence of any change in the
circumstances, once again present application is
preferred agitating same grounds, which in the
opinion of this Court, is not available to the
applicant in a successive bail application. Over
and above that, as stated above, the applicant is
involved in an offence, wherein one person has
lost his life and at the time of deciding earlier
bail application, which had been withdrawn by an
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order dated 22.03.2024, all the contentions of
learned advocate for the applicant had taken into
consideration and, thereafter the bail was
refused, therefore, the said application was
withdrawn. Therefore, the applicant is not
entitled for any relief as prayed for.
11. Further, by an order dated 17.09.2025, report was
called for from the concerned District Court with
regard to the status of trial, which has been
received from the concerned court. On going
through the said report, it is found out that from
one reason or another, the accused have adopted
tactics to get the trial delayed and thereby
taking advantage of the same. It is found out from
the said report that on 19.03.2025, advocate
representing accused had retired and, thereafter,
another advocate appeared on 23.04.2025 and,
thereafter, moved an application for the
production of FSL report and, thereafter, on one
reason or other, adjournments were sought for but
cost was imposed but despite the said fact, the
accused are not cooperating in disposal of the
trial. Not only that, despite listing of matter,
for one reason or another, learned advocate
representing the accused had submitted an
application seeking adjournment twice, which were
allowed by the concerned court but with cost but
despite imposition of cost, request for
adjournment is continued, which clearly goes on to
show that dilatory tactic has been adopted by the
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accused with a sole intent to prolong the delay.
witnesses, 4 prime witnesses (doctor and three
eyewitnesses) have already been examined and 6
witnesses have been dropped and thus, the trial is
in progress. Therefore, the submission of learned
advocate for the applicant with regard to delay in
trial is misconceived and is not acceptable.
12. At this stage, I would like to refer to the
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
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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 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
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the pendency of yet another bail application
No. 995 of 1989 otherwise he would have
disposed it of by the very same 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 by Puranik, J., only a
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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
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
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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 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
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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 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.
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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
considered while deciding earlier bail application
preferred by the applicant and found the active
involvement of the applicant in the commission of
crime in connivance with other co-accused.
Therefore on merit also, the applicant has no
case.
17. Over and above that, strong apprehension has been
shown by prosecution that if the applicant is
released on bail then, there is possibility of
tampering with the evidence and fleeing away from
the trial. Over and above that, the trial has
proceeded further and few witnesses are yet to be
examined and within no time, the witnesses would
be examined and the trial would be concluded.
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18. Accordingly, the present application is rejected.
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.
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
