The main legal point established is that the discretion to grant bail should be exercised judiciously, considering the seriousness of the offence and the need for proper reasoning in bail orders.

JUDGMENT :

By way of this petition under Section 439(2) of the Code of the Criminal Procedure, the applicant – State of Gujarat seeks to challenge the order dated 18/02/2022 passed in CR.MA No.27 of 2022 by the learned Additional Sessions Judge, Rajula granting regular bail to the respondent – org. accused in connection with the offence registered vide CR No.I-24 of 2018 punishable under Sections 302, 201, 120-B and 34 of the IPC and under Section 135 of the GP Act.

2. Though served, respondent choose not to contest the petition. The report from the learned Court below was called for. Pursuant to which the learned court below submitted the report which noted that in all total 12 witnesses have been examined and thereafter org. accused no.2 did not remain present and thus NBW was issued. Subsequently, the respondent herein - org. accused no.1 also did not remain present and NBW was also issued; however none of the NBW is served uptil now.

3. The short facts of the case are that younger brother of the complainant got love marriage with org. accused no.2 six years prior to incident and had kept the agriculture field at Village Rinanyala for cultivation since last four months wherein respondent-org. accused no.1 was also staying and doing agriculture work with whom accused no.2 was having love affair and since the younger brother of complainant was obstruction in their relationship, by hatching a conspiracy, both the accused killed the deceased with the weapon and buried his dead body in the field and thereby destroyed the evidence. Thus, the offence as alleged came to be registered as aforestated.

4. Learned APP has assailed the impugned order by submitting that the learned Court below has erroneously exercised the discretion in favour of the respondent–org. Accused No.1 by granting bail to him. He would further submit that it was third successive bail application wherein the learned Court below was lacking jurisdiction to grant bail in absence of any change of circumstances; however ignoring such aspect the respondent has been granted bail on untenable grounds which is not permissible under the law. He would therefore submit that the order passed by the learned Court below is capricious, whimsical and against settled proposition of law. He would further submit that prior to filing of the bail application before learned Court below, the respondent–org. accused No.1 preferred bail application before this Court being CR.MA No.11531 of 2020 and since the co-ordinate Bench of this Court was not inclined to grant bail as the trial was already commenced, the said application was permitted to be withdrawn with a specific direction to the learned trial Court to expedite the trial. He would further submit that this Court has not granted any liberty to file successive bail application while permitting withdrawal of said application; yet the learned Court below has not only admitted the bail application; but granted regular bail on irrelevant consideration without change of circumstances to the respondent-accused. Thus, the impugned order of granting bail is illegal and suffers from serious error of law and requires to be set aside.

4.1 By making above submissions, learned APP submitted to allow this petition and to cancel the bail granted to the respondent-accused.

5. Having heard the learned APP and considering the order passed by the Co-ordinate Bench, by which respondent was permitted to withdraw successive bail application filed after charge-sheet; considering ground that trial of the case is already commenced. This aspect was well within the knowledge of the respondent as well as the learned court below. What further appears that this Court has not reserved any liberty for the respondent to move the learned Court below for filing a fresh successive bail application. It further appears that without there being any change of circumstance, the respondent has moved the bail application and learned Court below has allowed the said application by