Bhavesh @ Bhuro @ Bhurbhai Karsanbhai Bharwad @ Bhalodiya vs State Of Gujarat

J. C. Doshi, J

By way of the present petition under Section 438 of the Code of Criminal Procedure, 1973, the petitioner has prayed to release him on anticipatory bail in case of his arrest in connection with C.R. No.11192010230301 of 2023 registered with Bagodara Police Station.

Learned advocate for the petitioner submits that considering the nature of allegations, role attributed to the petitioner, the petitioner may be enlarged on anticipatory bail by imposing suitable conditions. It is submitted that trial for other accused is going on and perusal of proceedings, the role of the petitioner is not figured and therefore, it appears that petitioner has been wrongly involved in the offence. Therefore, it is submitted to allow the petition.

Learned Additional Public Prosecutor appearing on behalf of the respondent-State has opposed grant of anticipatory bail looking to the nature and gravity of the offence. It is submitted that this is successive bail application and further the petitioner is on run and he is named in the second column as absconding and evading the arrest which indicates that petitioner is not co-operating with the investigation and therefore, the petition may not be entertained.

Having heard learned advocates for the parties, it appears that earlier the petitioner had preferred Criminal Misc .Application No.4836 of 2024 before this Court and it was withdrawn on 12.3.2024. Further learned advocate for the petitioner could not point out any change of circumstances in the present petition.

I may refer to judgment in case of GR Ananda Babu vs. State of Tamilnadu reported in 2021(16) SCC 725, wherein, Hon'ble Apex Court has made following observations made by the Hon’ble Apex Court :-

“7. As a matter of fact, successive anticipatory bail applications ought not to be entertained and more so, when the case diary and the status report, clearly indicated that the accused (respondent No. 2) is absconding and not cooperating with the investigation. The specious reason of change in circumstances cannot be invoked for successive anticipatory bail applications, once it is rejected by a speaking order and that too by the same Judge.”

Full Bench of Rajasthan High Court in the case of Ganesh Raj v/s. State of Rajasthan [2005 SCC Online Raj 319] has also addressed the issue of maintainability of 2nd successive bail application under section 438 of Cr.P.C. Full Bench of Rajasthan High Court after examining plethora of judgments including judgment of Hon’ble Apex Court in the case of Gurubaksh Singh sibbia v/s. State of Punjab [(1980) 2 SCC 565] as well judgment of in the case of Kalyan Chandra Sarkar v/s. Rajesh Ranaj @ Pappu Yadav (2005 (3) GLH 601] held in para 25 as under :-

“25. In the ultimate analysis, placing reliance on the ratio indicated in Kalyan Chandra Sarkar's case (supra), we hold that second or subsequent bail application under Section 438 Cr.P.C. can be filed 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. Second or subsequent anticipatory bail application shall not be entertained on the ground of new circumstances, further developments, different considerations, some more details, new documents or illness of the accused. Under no circumstances the second or successive anticipatory bail application shall be entertained by the Section Judge/Additional Sessions Judge.”

Present application is successive anticipatory bail application. Once pre-arrest bail is denied to the accused, he is not at liberty to successive bail applications except pleading and establishing change of circumstances. In the present case, learned advocate for the petitioner has failed to point out any change of circumstances. The change should be such which would require that earlier view needs to be interfered or where the earlier view has become obsolete. The change has to be substantial and must have direct impact on the earlier decision. The successive application cannot have the same grounds. In view of above, the petition is dismissed.