Gujarat High Court
Mustak @ Mustak Std Abbas Patel vs State Of Gujarat on 1 May, 2026
NEUTRAL CITATION
R/CR.MA/7119/2026 CAV JUDGMENT DATED: 01/05/2026
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Reserved On : 28/04/2026
Pronounced On : 01/05/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE REGULAR BAIL -
AFTER CHARGESHEET) NO. 7119 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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Approved for Reporting Yes No
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MUSTAK @ MUSTAK STD ABBAS PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR GAJENDRA P BAGHEL(2968) for the Applicant(s) No. 1
MR. ROHAN SHAH, LD. ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
CAV JUDGMENT
1. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent-State.
2. The present successive application is filed under Section 483 of the Bhartiya Nagrik Suraksha Sanhita, 2023, for regular bail in connection with the FIR being C.R. No.11210015220079 of 2022 registered with the DCB Police Station, Surat of the offence punishable under Sections 8 (c) , 22(c ) and 29 of the NDPS Act.
3. The first bail application of the applicant was rejected by this Court vide CAV judgment dated 19.12.2023 passed in Criminal Misc. Application No.13296 of 2023.
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4. The case of the prosecution, in a nutshell, is that on the basis of the secret information about illegal trafficking of Narcotic Substance Mephedrone by the accused persons, which is kept in the house of accused No.1-Mustak Abbas Patel situated at Amreli Kosad Aavas, H-2, Building No.193/B, Flat No.4, the police authority, after following the due procedure, raided the house of the accused No.1, where the accused No.1 was present in the house and accordingly search was conducted of the said house, upon which, Mephedrone drug weighing 133.95 gram was found and seized by the police, pursuant to which, the applicant-accused, along with the other co-accused, came to be arrested. Hence, the impugned FIR.
5. It is contended by learned counsel Mr. Gajendra Baghel for the applicant that the applicant is languishing in jail since 28.04.2022, and as of now, only four witnesses have been examined out of total 60 witnesses witnesses cited by the investigating agency to be examined. It is also contended that the other co-accused persons having more or less similar role to that of the applicant, have already been enlarged on bail by this Court, a copy of which orders have also been appended along with the memo of the application, and as such, on the ground of parity, the applicant deserves to be release on bail. It is further contended by learned counsel Mr. Baghel that pursuant to the registration of the FIR, investigation was commenced, and ultimately, at the end of day, charge-sheet also came to be filed against total two persons, out of which, two persons have already been enlarged on bail. It is further contended that apart from the aforesaid 60 witnesses cited to be examined, there are so many documentary evidences Page 2 of 20 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri May 01 2026 Downloaded on : Sat May 02 05:23:36 IST 2026 NEUTRAL CITATION R/CR.MA/7119/2026 CAV JUDGMENT DATED: 01/05/2026 undefined attached along with the charge-sheet, and as such, considering the strength of oral as well as documentary evidences, the trial is likely to take considerable long period of time to conclude, and as such, considering the period incarceration already spent by the applicant, i.e, more than four years, still keeping the applicant behind the bar would be nothing but a pre-trial conviction.
6. It is further contended by learned counsel Mr. Baghel that the present application has been filed mainly on two grounds, i.e, delay in trial and the period of incarceration already spent by the applicant. It is also contended that most of the co- accused persons have already been enlarged on bail, and due to their non-availability as well as the prosecution witnesses, the trial is getting delayed, the resultant effect of which, would be that, if the same scenario continues, the applicant will have to remain in jail for an indefinite period without there being any fault on his part. Neither the contraband substance belongs to the present applicant nor the house from where it was found. It is further contended by learned counsel Mr. Baghel that even the Hon'ble Apex Court, in number of decisions, has held that 'the prolonged incarceration, generally militates against the most precious right guaranteed under Article 21 of the Constitution of India, and in such situation, the conditional liberty must override the statutory embargo created under Section 37 of the NDPS Act.'. To buttress his aforesaid submissions, learned counsel Mr. Baghel has relied upon the decision in the case of Mohd Muslim @ Hussain vs. State (NCT of Delhi), Special Leave Petition No.915 of 2023, decided on 28.03.2023, more particularly, Para-20 therein.
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7. In such circumstanced, referred to above, learned advocate Mr. Baghel prays that there being merit in this application, the same be allowed and the applicant-accused be released on bail.
8. Per contra, the present application has been vehemently opposed by learned APP Mr. Rohan Shah appearing for the respondent-State. He has contended that the first bail application of the applicant has been rejected by this Court on merits vide a detailed judgment and order dated 19.12.2023, which has also been confirmed by the Hon'ble Apex Court. It is further contended that the matter had already been argued on merits by both the sides, and the present application is said to have been filed mainly on the ground of delay in trial as also on the ground of parity as the other co-accused have been enlarged on bail. So far as the ground of parity is concerned, he has contended that the co-accused persons have been enlarged on bail considering their individual role in the commission of the crime, which is quite distinct and different than the role attributed to the applicant, and therefore, the benefit of parity cannot be extended in favour of the applicant. Moreover, the quantity of the contraband substance is also quite huge weighing 133.95 grams, and as such, rigors of Section 37 of the NDPS Act also comes into play. It is further contended by learned APP Mr. Shah that so far as the second ground of delay in trial is concerned, the same cannot be attributed to the prosecuting agency only. He has contended that due to non-availability of the other co-accused as well as due to filing of certain applications by the accused persons during the trial, the trial has been delayed, and as such, Page 4 of 20 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri May 01 2026 Downloaded on : Sat May 02 05:23:36 IST 2026 NEUTRAL CITATION R/CR.MA/7119/2026 CAV JUDGMENT DATED: 01/05/2026 undefined instead of entertaining the present application, the Court may give direction to the concerned trial court to expedite the trial, and complete the same within some stipulated time period, which would meet the ends of justice. Moreover, the report has also been called for by this Court from the concerned Presiding Officer as regards the status of trial, which is also received by this Court, wherein it is clearly stated that the trial would be concluded within a period of 12 months. It is also contended that the present bail application which is a successive bail application has been filed without any fresh and new ground. It is contended that all the grounds as taken were available at the time of hearing of the first bail application. It is further contended that there is no subsequent development after rejection of the previous bail application which would entitle the applicant to file a successive bail application. Furthermore, there are four antecedents against the present applicant, and as such, the aspect of applicant being indulged himself into the similar kind of activity also cannot be ignored. Thus, the present application, being devoid of any merit, deserves to be dismissed. Learned APP Mr. Shah, to buttress his submissions, has relied upon the decision in the case of State of Punjab vs. Sukhwinder Singh @ Gora, Special Leave Petition (CRL) No.5020 of 2026, decided on 24.04.2026.
9. After having heard learned counsel for the respective parties and perusing the records, it is evident that this is a successive bail application. The first bail application of the applicant has already been rejected by this Court on merits vide a detailed judgment and order dated 19.12.2023. The same is extracted herein-below:
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2. Learned advocate Mr. N.M. Kapadia has submitted that the applicant-accused was arrested on 28.04.2022 and since then he is in jail. Now the investigation has been completed and charge-sheet has been filed.
Learned advocate Mr. Kapadia has submitted that it is found out from the record that the Investigating Officer has not followed the due procedure as prescribed under Section 52-A at the time of collecting samples of the contraband substance and there is a violation of the provisions of Section 52-A. It is further submitted that the samples were not drawn in a proper manner and the said fact is clearly found out from the compilation of the charge-sheet papers Learned advocate Mr. Kapadia has also submitted that as per the principle enunciated by the Hon'ble Apex Court in the case of Union of India vs. Mohanlal, reported in (2016) 3 SCC 379 and in the case of Yusuf @ Asif vs. State, 2023 SCC Online SC 1328 and in the case of Simranjit Singh vs. State of Punjab, reported in 2023 SCC Online SC 906, without following the provisions of Section 52-A at the time of collecting samples and getting it certified by the Magistrate, it cannot be said that what is recovered is actually a contraband article, and in that event, rigors of Section 37 of the NDPS Act would not come into play and there are reasonable grounds for believing that the applicant is not guilty of such offence. Learned advocate Mr. Kapadia has also submitted that it is an admitted position of fact that the applicant-accused is in jail since last more than one year and six months and there are in all 60 witnesses have been cited in the charge-sheet papers. The trial has yet not commenced and not a single witness has been examined so far which indicates that the trial would take considerable long period of time to conclude. It is also submitted that earlier the applicant was released on temporary bail and during that period he Page 6 of 20 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri May 01 2026 Downloaded on : Sat May 02 05:23:36 IST 2026 NEUTRAL CITATION R/CR.MA/7119/2026 CAV JUDGMENT DATED: 01/05/2026 undefined has not committed any offence. Therefore, it can safely be said that the applicant-accused is not likely to commit any offence while on bail. In support of the aforesaid submissions, learned advocate Mr. Kapadia has put reliance upon the following decisions;
1) In the case of Yusuf @ Asif vs. State, reported in 2023 SCC Online SC 1328;
2) In the case of Simranjit Singh vs. State of Punjab, reported in 2023 SCC Online SC 906;
3) In the case of Union of India vs. K.A. Najeeb, reported in (2021) 3 SCC 713;
4) In the case of Shafih Mohammed vs. State of Himachal Pradesh, reported in (2018) 5 SCC 311
3. In such circumstanced, referred to above, learned advocate Mr. Kapadia prays that there being merit in this application, the same be allowed and the applicant- accused be released on bail.
4. The learned APP Mr. Manan Mehta appearing on behalf of the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence. Learned APP Mr. Mehta has submitted that more than the commercial quantity of contraband substance, i.e, Mephedrone weighing 133.95 grams was recovered from the conscious possession of the applicant-accused and, therefore, rigors of Section 37 would come into play in the present case and squarely applicable so far as the present applicant-accused is concerned. Learned APP Mr. Mehta has submitted that the police papers clearly shows that the present applicant-accused is involved in the present offence from the very inception. The members of the raiding party conducted raid at the residence of the applicant-accused from where the contraband article was recovered. Learned APP Mr. Mehta has submitted that the present applicant-accused is a drug addict and other four offences have also been registered against him. It is further submitted that the applicant has committed serious offence which may Page 7 of 20 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri May 01 2026 Downloaded on : Sat May 02 05:23:36 IST 2026 NEUTRAL CITATION R/CR.MA/7119/2026 CAV JUDGMENT DATED: 01/05/2026 undefined affect the life of other persons and if applicant has been released on bail, he may again involve himself in such type of offence. Therefore, considering the role attributed to the applicant-accused, this is a fit case wherein discretionary power of this Court is not required to be exercised in favour of the applicant-accused.
5. At the outset, I would like to refer and analyze the provisions and objective of the NDPS Act. Section 37 of the Act reads as under:
"37. Offences to be cognizable and non-bailable. --
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless--
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail."
6. In view of the gravity of the consequences of drug trafficking, the offences under the Act have been made cognizable and non-bailable. The does not allow granting Page 8 of 20 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri May 01 2026 Downloaded on : Sat May 02 05:23:36 IST 2026 NEUTRAL CITATION R/CR.MA/7119/2026 CAV JUDGMENT DATED: 01/05/2026 undefined bail for offences punishable under Section 19 or Section 24 or Section 27A and for offences involving commercial quantity unless the twin conditions prescribed under the Section have been met. The conditions include:
a. hearing the Public Prosecutor; and b. satisfaction of the Court based on reasonable grounds that the accused is not guilty of the offence and that he is likely to not commit an offence of a similar nature.
7. The fetters on the power to grant bail do not end here, they are over and above the consideration of relevant factors that must be done while considering the question of granting bail. The court also needs to be satisfied before grant of bail about the scheme of Section 439 of the Code.
8. Thus, it is evident that the present section limits the discretion of the court in matters of bail by placing certain additional factors over and above, what has been prescribed under the Code.
9. The contours of Section 37 of the NDPS Act have been analysed by the Hon‟ble Supreme Court in the case of Union of India v. Ram Samujh (1999) 9 SCC 429. In this case, the Apex Court was required to adjudge the validity of the order on bail granted by the High Court in a case registered under the Act. The Hon'ble Court extracted the Statement of Objects and Reasons for the introduction of amended Section 37 of the Act through Bill No. 125 of 1988. It is relevant to extract those for the present analysis, which reads as:
"6. The aforesaid section is incorporated to achieve the object as mentioned in the Statement of Objects and Reasons for introducing Bill No. 125 of 1988 thus:
"Even though the major offences are non-bailable by virtue of the level of punishments, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the Page 9 of 20 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri May 01 2026 Downloaded on : Sat May 02 05:23:36 IST 2026 NEUTRAL CITATION R/CR.MA/7119/2026 CAV JUDGMENT DATED: 01/05/2026 undefined enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985, the need to amend the law to further strengthen it, has been felt."(emphasis supplied)
7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy., Union Territory of Goa [(1990) 1 SCC 95 : 1990 SCC (Cri) 65] as under: (SCC p. 104, para 24) "24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum Page 10 of 20 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri May 01 2026 Downloaded on : Sat May 02 05:23:36 IST 2026 NEUTRAL CITATION R/CR.MA/7119/2026 CAV JUDGMENT DATED: 01/05/2026 undefined imprisonment and fine."
10. Thus, what is evident from the above is that the offences prescribed under the Act are not only a menace to a particular individual but to the entire society especially, the youth of the country. Such offences have a cascading effect and are in vogue these days, thus destroying the capabilities and lives of a big chunk of the population and trend has been growing over the years. Therefore, in order to prevent the devastating impact on the people of the nation, Parliament in its wisdom deemed it fit to introduce stringent conditions for grant of bail under the Act. The Court has to stay mindful of the legislative intent and mandate of the Act while granting bail in such matters.
11. In the instance case, the applicant-accused has been charged with the offence punishable under Sections 8(c), 22(c) and 29 of the NDPS Act involving prohibited Mephedrone Drugs of 133.95 grams without there being any pass and permit. The said quantity is commercial in nature, and as such, rigors of Section 37 is attracted in the present case. The contraband substance was recovered from the conscious possession of the applicant-accused from his house. It also appears from the police papers that the applicant-accused was indulged in the business of sale and purchase of Mephedrone Drugs since last two years. The Investigating Officer also seized books of accounts with regard to sale and purchase of the Mephedrone Drugs from the house of the applicant-accused. It also appears from the police papers that the applicant-accused had made 1517 phone calls to the absconding accused Abid Shama and 5 phone calls to accused Kutubuddin Shaikh, which is evident from the Call Data Record (CDR) collected by the Investigating Officer during the course of investigation. It is also pertinent to note that the applicant-accused has been named in the FIR and he is the main accused person. Thus, in view of the above stated facts and circumstances, the decisions relied upon by the learned advocate for the applicant-accused, in my opinion, is of no avail to the case on hand. As the quantity of contraband substance is commercial in Page 11 of 20 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri May 01 2026 Downloaded on : Sat May 02 05:23:36 IST 2026 NEUTRAL CITATION R/CR.MA/7119/2026 CAV JUDGMENT DATED: 01/05/2026 undefined nature, the embargo as contained in Section 37 of the NDPS Act would come into play in the present case.
12. Thus, in light of the aforesaid analysis of the provisions of the law, the jurisprudence pertaining thereto, and the relevant rulings of the Hon'ble Supreme Court referred above, this Court is not inclined to allow the instant application.
13. In the result, the present Bail Application fails and is hereby dismissed. Rule is discharged."
10. Although a second bail application on behalf of the accused is not barred and is maintainable but considerations of the grounds of bail are the factors to be taken into account in it. Remedy of filing of second bail application is always available on fresh and new grounds to the accused after rejection of the first bail application. It cannot be said that a second bail application would not be maintainable. The maintainability of such bail application is there but consideration of the prayer for bail is subject to the availability of fresh and new grounds which if not available would render reviewing the earlier order rejecting the bail application.
11. In so far as the aspect of maintainability of a second bail application is concerned, it is now no longer res-integra that the same is maintainable. However, the question that arises is 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. To this, in the opinion of this Court, the same is not possible. A subsequent bail application is always maintainable, but consideration of the prayer of bail depends on the facts as to whether fresh and new grounds have been pleaded and are Page 12 of 20 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri May 01 2026 Downloaded on : Sat May 02 05:23:36 IST 2026 NEUTRAL CITATION R/CR.MA/7119/2026 CAV JUDGMENT DATED: 01/05/2026 undefined available or not.
12. In the case of State of Maharashtra Vs. Buddhikota Subha Rao, 1989 Supp (2) SCC 605 it has been held by the Hon'ble Apex Court that once a bail application has been rejected, is 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 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 Page 13 of 20 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri May 01 2026 Downloaded on : Sat May 02 05:23:36 IST 2026 NEUTRAL CITATION R/CR.MA/7119/2026 CAV JUDGMENT DATED: 01/05/2026 undefined 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 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 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 Page 14 of 20 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri May 01 2026 Downloaded on : Sat May 02 05:23:36 IST 2026 NEUTRAL CITATION R/CR.MA/7119/2026 CAV JUDGMENT DATED: 01/05/2026 undefined 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 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. The Hon'ble Apex Court in the case of State of M.P. Vs. Kajad, (2001) 7 SCC 673 has held that although successive bail applications are permissible but under changed circumstances. It has been held as under :-
"8. It has further to be noted that the factum of the rejection of his earlier bail application bearing Miscellaneous Case 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 : 2001 SCC (Cri) 113] and various other judgments."
14. Further, the Hon'ble Apex Court in the case of Kalyan Chandra Sarkar Vs. Rajesh Ranjan, (2005) 2 SCC 42 has held that subsequent bail application can be filed if there is a Page 15 of 20 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri May 01 2026 Downloaded on : Sat May 02 05:23:36 IST 2026 NEUTRAL CITATION R/CR.MA/7119/2026 CAV JUDGMENT DATED: 01/05/2026 undefined change in the fact situation or law which would render the previous view obsolete. The Court rejected the argument that successive bail application can be filed on a ground already rejected by courts earlier and it would not be violative of Article 21 of the Constitution of India. It has been held as under:-
"8. On 23-9-2002 the accused-respondent moved the eighth bail application which came to be allowed by the High Court by its order dated 23-5-2003 solely on the ground that the accused- respondent had undergone incarceration for a period of 3 years and that there was no likelihood of the trial being concluded in the near future and an appeal filed against the said grant of bail came to be allowed [Ed.: In Kalyan Chandra Sarkar v. Rajesh Ranjan, op. cit. fn. 2, above] on the ground that the High Court could not have allowed the bail application on the sole ground of delay in the conclusion of the trial without taking into consideration the allegation made by the prosecution in regard to the existence of prima facie case, gravity of offence, and the allegation of tampering with the witness by threat and inducement when on bail. This Court held [Ed.: In Kalyan Chandra Sarkar v. Rajesh Ranjan, op. cit. fn. 2, above] that since the above factors go to the root of the right of the accused to seek bail, non-consideration of the same and grant of bail solely on the ground of long incarceration vitiated the order of the High Court granting bail. This Court also observed that though an accused had a right to make successive applications for grant of bail the court entertaining such subsequent bail applications has duty to consider the reasons and grounds on which the earlier bail applications were rejected and in such cases the court also has a duty to record what are the fresh grounds which persuaded it to take a view different from the one taken in the earlier applications. This Court in that order also found fault with the High Court for not recording any fresh grounds while granting bail and for not taking into consideration the basis on which earlier bail applications were rejected. The Court also emphasised in the said Page 16 of 20 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri May 01 2026 Downloaded on : Sat May 02 05:23:36 IST 2026 NEUTRAL CITATION R/CR.MA/7119/2026 CAV JUDGMENT DATED: 01/05/2026 undefined order that ignoring the earlier orders of this Court is violative of the principle of binding nature of the judgments of the superior court rendered in a lis between the same parties, and noted that such approach of the High Court in effect amounts to ignoring or overruling and thus rendering ineffective the principles enunciated in the earlier orders especially of the superior courts. On that basis, the appeal of the complainant challenging the grant of bail came to be allowed cancelling the bail granted to the respondent. This order of this Court is reported as Kalyan Chandra Sarkar v. Rajesh Ranjan [(2004) 7 SCC 528 : 2004 SCC (Cri) 1977]."
XXX XXX XXX "20. The decisions given by a superior forum, undoubtedly, are 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 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." (emphasis supplied)"
15. A reading of the aforesaid tenets of law makes it clear that there is no bar in successive bail applications being moved for consideration by the Courts. However the Hon'ble Apex Court has clearly held that the practice suggested would also discourage filing of successive bail applications without change of circumstances. This observations make it clear that Page 17 of 20 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri May 01 2026 Downloaded on : Sat May 02 05:23:36 IST 2026 NEUTRAL CITATION R/CR.MA/7119/2026 CAV JUDGMENT DATED: 01/05/2026 undefined it should be only when some new facts and circumstances have developed after rejection of the previous bail application then only the second bail application should be considered on merit.
16. Now reverting to the present case, so far as the merit of the case is concerned, the same has already been dealt with by this Court while deciding the first bail application, as quoted above, and as such there is no occasion to reconsider it.
17. It appears that the judgment and order passed by this Court, rejecting the previous bail application of the applicant, has also been confirmed by the Hon'ble Apex Court, and now again the applicant has come with the present application, seeking to release him on bail on the same set of facts and materials, seems to be filed solely on the ground of so called change of circumstances viz. (i) that the co-accused have already been released on bail and (ii) delay in trial. However, parity is not a law. While applying the principle of parity, the Court has to focus upon the role attached to the accused whose application is under consideration. Here, in the case on hand, from the materials place, it appears that the role of the present applicant is quite distinct and different than the role of the co-accused who have been enlarged on bail. In this context, I would like to refer to and rely upon some of the relevant observations made by the Hon'ble Apex Court in the case of Tarun Kumar vs. Asst. Director, Directorate of Enforcement, Special Leave Petition No.9431 of 2023, decided on 20.11.2023, which read thus;
"18. The submission of learned Counsel Mr. Luthra to Page 18 of 20 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri May 01 2026 Downloaded on : Sat May 02 05:23:36 IST 2026 NEUTRAL CITATION R/CR.MA/7119/2026 CAV JUDGMENT DATED: 01/05/2026 undefined grant bail to the appellant on the ground that the other co-accused who were similarly situated as the appellant, have been granted bail, also cannot be accepted. It may be noted that parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration. It is not disputed in that the main accused Sh. Kewal Krishan Kumar, Managing Director of SBFL, and KMP of group companies and the other accused Devki Nandan Garg, owner/ operator/ controller of various shell companies were granted bail on the ground of infirmity and medical grounds. The co-accused Raman Bhuraria, who was the internal auditor of SBFL has been granted bail by the High Court, however the said order of High Court has been challenged by the respondent before this Court by filing being SLP (Crl.) No. 9047 of 2023 and the same is pending under consideration. In the instant case, the High Court in the impugned order while repelling the said submission made on behalf of the appellant, had distinguished the case of Raman Bhuraria and had observed that unlike Raman Bhuraria who was an internal auditor of SBFL (for a brief period statutory auditor of SBFL), the applicant was the Vice President of Purchases and as a Vice President, he was responsible for the day-
to-day operations of the company. It was also observed that the appellant's role was made out from the financials, where direct loan funds have been siphoned off to the sister concerns of SBFL, where the appellant was either a shareholder or director. In any case, the order granting bail to Raman Bhuraria being under consideration before the coordinate bench of this Court, it would not be appropriate for us to make any observation with regard to the said order passed by the High Court.
19. It is axiomatic that the principle of parity is based on the guarantee of positive equality before law enshrined in Article 14 of the Constitution. However, if any illegality or irregularity has been committed in favour of any individual or a group of individuals, or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing similar wrong order. Article 14 is not meant to Page 19 of 20 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri May 01 2026 Downloaded on : Sat May 02 05:23:36 IST 2026 NEUTRAL CITATION R/CR.MA/7119/2026 CAV JUDGMENT DATED: 01/05/2026 undefined perpetuate the illegality or irregularity. If there has been a benefit or advantage conferred on one or a set of people by any authority or by the court, without legal basis or justification, other persons could not claim as a matter of right the benefit on the basis of such wrong decision."
18. So far as the second limb of argument cavanssed by learned counsel for the applicant is concerned, i.e, the delay in trial, in my opinion, second bail application is maintainable only when there is some fresh material on record or some new ground has been made. In the instant case, no fresh argument has been advanced by learned counsel for the applicant to show any change of circumstances or bringing into light some new facts, present bail application has been filed only on the ground of period of detention and nothing new has been brought on record. Argument of applicant's counsel that trial has yet not been completed and is still proceeding cannot be said to be a substantial change of circumstance, which requires interference of this Court for enlarging the applicant on bail.
19. In view of above, the present successive bail application is not maintainable. The bail application is misconceived and stands rejected. Rule is discharged.
(DIVYESH A. JOSHI,J) VAHID Page 20 of 20 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri May 01 2026 Downloaded on : Sat May 02 05:23:36 IST 2026