ORDER : BY THE COURT 1. The instant Criminal Misc. Bail cancellation application has been preferred on behalf of the petitioner Smt. Meera, who happens to be the complainant/wife of the deceased in the case pertaining to the FIR No.106/2022 registered at the Police Station Khamnor, District Rajsamand for offences under Sections 394, 302, and 120-B of the IPC. She is aggrieved of the order dated 23.12.2022 passed by the learned Additional Sessions Judge, Nathdwara in Criminal Misc. Case No.241/2022 whereby respondent No. 2 Raju Singh S/O Bhur Singh Dulawat was granted bail by exercising judicial power incautiously and with sheer misuse of the discretion vested with the learned Sessions Judge concerned. 2. Bereft of the elaborate details, the brief facts of the case would be that an FIR No.106/2022 was lodged on 15.05.2022 at the Police Station Khamnor, District Rajsamand alleging inter alia that Bhur Singh, who was the father of the first informant Raju Singh and the husband of the petitioner, was found dead on a woven bed in his house. It was further alleged that some ornaments belonging to the deceased were also found missing and the suspicion was cast to the effect that someone might have killed his father (deceased Bhur Singh) while committing robbery. 3. In view of the allegation mentioned above, the present FIR bearing No.106/2022 has been registered at Khamnor Police Station, District Rajsamand, and during the investigation, the accused persons namely Ramniwas and Ranjeet along with respondent no.2 were arrested by the investigating agency, charge sheet thereof has been filed against the accused before the court, resulting thereof, accused respondent is facing the trial in Sessions Case No. 17/2022 pending before the learned Additional Sessions Judge, Nathdwara. Where in this case, the respondent Raju Singh was granted bail vide order dated 23.12.2022 on the ground of bail granted to the co-accused persons Ramniwas and Ranjeet by order dated 22.12.2022 and the fact of dismissal of earlier bail applications were not taken into account. 4. Heard the counsels representing parties and gone through the averments made by them. The startling fact of the case regarding the manner of disposal of the two bail applications shook the consciousness of the Court, one of the accused Ramniwas and Ranjeet were granted bail on 22.12.2022, and the accused respondent Raju Singh was bailed out vide order dated 23.12.2022 relying on the bail order of co-accused persons. The startling fact of the case regarding the manner of disposal of the two bail applications shook the consciousness of the Court, one of the accused Ramniwas and Ranjeet were granted bail on 22.12.2022, and the accused respondent Raju Singh was bailed out vide order dated 23.12.2022 relying on the bail order of co-accused persons. 5. By going through the material made available, this Court observed that the first bail application of accused Raju Singh was filed on 06.07.2022 and the same was dismissed vide order dated 06.07.2022. The second bail application was filed on 13.07.2022 but it also got dismissed on the very same day, which resulted in another bail application getting lodged on 24.08.2022 which again got dismissed on merits vide order dated 24.08.2022 by the learned trial court passing a detailed order. Surprisingly, the bail application No.241/2022 was allowed by the learned trial Court vide order dated 23.12.2022 without assigning to any cogent and plausible reason which is against the propriety and Judicial Discipline. Hon’ble Supreme Court in the case of Kalyan Chandra Sarkar Vs. Rajesh Ranjan and Ors., AIR 2004 SC 1866 while explaining the duties of the court to give specific reasons while dealing with subsequent bail applications has held as under : “12. In regard to cases where earlier bail applications have been rejected there is a further onus on the court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail applications have been rejected and after such consideration if the court is of the opinion that bail has to be granted then the said court will have to give specific reasons why in spite of such earlier rejection the subsequent application for bail should be granted.(See Ram Govind Upadhyay, supra). 13. Bearing in mind the above principles which on facts are applicable to the present case also, we will now consider the merits of the above appeal. 14. We have already noticed from the arguments of learned counsel for the appellant that the present accused had earlier made seven applications for grant of bail which were rejected by the High Court and some such rejections have been affirmed by this Court also. 14. We have already noticed from the arguments of learned counsel for the appellant that the present accused had earlier made seven applications for grant of bail which were rejected by the High Court and some such rejections have been affirmed by this Court also. It is seen from the records when the seventh application for grant of bail was allowed by the High Court, the same was challenged before this Court and this Court accepted the said challenge by allowing the appeal filed by the Union of India and another and cancelled the bail granted by the High Court as per the order of this Court made in Criminal Appeal No. 745/2001 dated 25th July, 2001. While cancelling the said bail this Court specifically held that the fact that the present accused was in custody for more than one year (at that time) and the further fact that while rejecting an earlier application, the High Court had given liberty to renew the bail application in future, were not grounds envisaged under Section 437(1)(1) of the Code. This Court also in specific terms held that condition laid down under Section 437(1)(1) is sine qua non for granting bail even under Section 439 of the Code. In the impugned order it is noticed that the High Court has given the period of incarceration already undergone by the accused and the unlikelihood of trial concluding in the near future as grounds sufficient to enlarge the accused on bail, in spite of the fact that the accused stands charged of offences punishable with life imprisonment or even death penalty. In such cases, in our opinion, the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitle the accused to being enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail.” It is observed that the learned Additional Sessions Judge acted in utter disregard to judicial practice by not considering its earlier order dated 24.08.2022 and others rejecting the bail application on merits and without giving any specific reason or changed circumstance passed an order granting bail to the respondent by order dated 23.12.2022. 6. Another aspect to consider in this instant bail cancellation application is the manner in which the bail application of co-accused Ramniwas and Ranjeet was allowed. The nature and gravity of the accusation against the accused respondent and the accused Ramniwas and Ranjeet are on a similar footing and all three of them are together facing charges under Sections 394, 302, and 120-B of the IPC. The bail application of accused Raju Singh was granted on the sole ground that the Bail has been granted to co-accused Ramniwas and Ranjeet vide order dated 22.12.2022. For ready reference, the order of bail dated 22.12.2022 of accused Ramniwas and Ranjeet granted by the learned Additional Sessions Court, Nathdwara, Rajsamand is being reproduced hereunder:- The aforesaid order has been passed by the learned trial Court in subsequent bail application, and on looking at the suspicious facts and circumstances. On 01.08.2022, Bail Application No.177/2022 came to be submitted on behalf of the accused-respondents Ramniwas and Ranjeet, and on several occasions, the hearing of the same was deferred for one or the other reason. On 15.12.2022, upon the request made by their counsel Mr. Gajendra Tak, Bail application No.177/2022 was dismissed as not pressed. 7. Interestingly, on the very same day another Bail Application No.233/2022 was filed on behalf of the accused. On 15.12.2022, upon the request made by their counsel Mr. Gajendra Tak, Bail application No.177/2022 was dismissed as not pressed. 7. Interestingly, on the very same day another Bail Application No.233/2022 was filed on behalf of the accused. A footnote appended on the bail application dated 15.12.2022 mentioned that “this is the first application of accused, no application is subjudice in any court”, and the same fact is contrary to the fact that it was a subsequent application and not the first one; after hearing the accused the learned trial judge granted bail to them ignoring the fact that three bail applications of similarly situated accused had been rejected by him within a short span of around three months. The fact that after granting bail to the accused Ramniwas and Ranjeet, the respondent bailed out on the next day, probably on the premise that co-accused have been granted bail. 8. The first Bail application of accused Ramniwas and Ranjeet was dismissed, as not pressed by their counsel and in the manner in which the subsequent Bail application was filed, on the very same day, and allowed by the learned Additional Sessions Judge vide order dated 22.12.2022 do not seem to be justifiable and reasonable and is against the judicial discipline as the same was a subsequent bail application, not the first one. 9. It is not in dispute that the power of this Court and Court of Session under section 439 of Cr.P.C. are concurrent and Bail is a matter of discretion. It is a well-nigh-settled principle of law that discretion has to be exercised judiciously and never ever it should be arbitrary, or fanciful and the same cannot be exercised capriciously. It is also true that a successive Bail application is maintainable as the doctrine of Res judicata does not apply here. Hearing a successive bail application would not mean reviewing its earlier order or revisiting the factual situation again. However, judicial discipline, propriety, fair play, and in order to give finality to an adjudication; a criminal court is supposed to entertain a 2nd or successive bail application after the change of circumstance, change of legal and factual situation, change of stage of the judicial proceeding. The length of custody and incarceration after the rejection of the previous bail application is also a valid ground to take into consideration while entertaining a successive or second bail application. 10. The length of custody and incarceration after the rejection of the previous bail application is also a valid ground to take into consideration while entertaining a successive or second bail application. 10. It would be pertinent to mention here that the case, the nature and gravity of the accusation against the accused Ramniwas, Ranjeet and the accused respondent of this case is on a similar footing and his bail was rejected on merits on three occasions vide order dated 06.07.2022, 13.07.2022 and 24.08.2022 by a detailed order and after the rejection of the last application; there was no significant change in circumstances in the case. Where a bail application under section 439 CrPC of a similarly situated accused is considered on merit and dismissed on the ground of the nature and gravity of the charges and availability of the material in support thereof, then without change of circumstance, change of stage and period lapse, entertaining and allowing the successive bail application is a sheer misuse of discretion vested with the judge. Hon’ble Apex Court in the case of State of Madhya Pradesh Vs. Kajad, AIR 2001 SC 3317 held: “11. It has further to be noted that the factum of the rejection of his earlier bail application bearing Misc. case No. 2052 of 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 & Anr. and various other judgments.” 11. Once a bail application is dismissed as not pressed by any court, then accepting it again after a few days without any change in circumstance and length of period and when bail of a co-accused having the same and identical allegation had already been dismissed on merits then reviewing its own order is not permissible in criminal jurisprudence. The analogy can be taken from section 362 of Cr.P.C. which mandates that a criminal court becomes functus officio after passing any order and only except for clerical or arithmetical errors no alterations are permissible. In the case of Hari Singh Mann Vs. The analogy can be taken from section 362 of Cr.P.C. which mandates that a criminal court becomes functus officio after passing any order and only except for clerical or arithmetical errors no alterations are permissible. In the case of Hari Singh Mann Vs. Harbhajan Singh Bajwa and Ors., AIR 2001 SC 43 the Hon’ble Apex Court while elaborating the purview of section 362 which prohibits courts from altering or reviewing its judgment held: “10. Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledge principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision become functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a court of competent jurisdiction in a manner prescribed by law. The court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. The reliance of the respondent on Talab Haji Hussain's case (supra) is misconceived. Even in that case it was pointed that inherent powers conferred on High Courts under Section 561A (Section 482 of the new Code) has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself. It is not disputed that the petition filed under Section 482 of the Code had been finally disposed of by the High Court on 7-1-1999. The new Section 362 of the Code which was drafted keeping in view the recommendations of the 41st Report of the law Commission and the Joint Select Committees appointed for the purpose, has extended the bar of review not only to the judgment but also to the final orders other than the judgment. 11. The impugned orders of the High Court dated 30-4-1999 and 21-7-1999 which is not referable to any statutory provisions having been passed apparently in a review petition in a criminal case is without jurisdiction and liable to be quashed. 11. The impugned orders of the High Court dated 30-4-1999 and 21-7-1999 which is not referable to any statutory provisions having been passed apparently in a review petition in a criminal case is without jurisdiction and liable to be quashed. In view of what has been stated hereinabove, the appeals are allowed and the impugned order of the High Court dated 30-4-1999 and 21-7-1999 are set aside restoring its original order dated 7-1-1999.” 12. In the case of Ramniwas and Ranjeet, the learned trial judge rejected the bail application at first instance on 15.12.2022 as not pressed and on the same day, a subsequent bail application was filed on behalf of the accused Ramniwas and Ranjeet which was astonishingly granted after 7 days on 22.12.2022. This fact has strangely been ignored that he had dismissed the bail application of a similarly situated accused respondent Raju Singh by a detailed order wherein the gravity and nature of the offence, as well as the availability of material against all accused, were taken as grounds of dismissal. Whereafter, without change of any circumstance, the bail has been granted which in view of this court seems absolutely improper, unreasonable, and against the legal practice as well. By perusal of the order dated 15.12.2022 whereby the bail application of accused Ramniwas and Ranjeet was rejected as not pressed and the bail of the accused respondent Raju Singh was dismissed on merits, persuaded this Court to hold that acceptance of subsequent bail order dated 22.12.2022 and 23.12.2022 without any circumstantial change and in the same factual situation by the Sessions judge is absolutely perfunctory. 13. The aspersions raised on behalf of the petitioner being the wife of the deceased on the manner of granting bail cannot be ignored, however, this Court would desist from making any comment on this aspect but feels that the order impugned has been passed in utter disregard to the judicial discipline, so also the same puts a question mark on its fair play. 14. Considering the overall facts and circumstances of the case, this Court is inclined to accept the instant application for cancellation of bail. 15. Accordingly, the instant application for cancellation of bail is allowed. 14. Considering the overall facts and circumstances of the case, this Court is inclined to accept the instant application for cancellation of bail. 15. Accordingly, the instant application for cancellation of bail is allowed. The order dated 23.12.2022 passed by the learned Additional Sessions Judge, Nathdwara in Criminal Case No.241/2022 pertaining to the Sessions Case No.17/2022 arising out of the FIR No.106/2022 registered at the Police Station, Khamnor, District Rajsamand for the offence under Sections 394, 302, 120-B of the IPC is hereby canceled. The accused Raju Singh shall surrender before the trial court within 90 days from today failing which, the warrant of arrest shall be issued against him by the learned Additional Sessions Judge. The copy of this order shall be transmitted to the learned trial court forthwith. The trial court is hereby directed to issue necessary directions in this regard in order to ensure the presence of the accused before it. Needless to state that the observations made in the order shall not be taken as a future impediment for the trial court to re-consider the fresh Bail application of the accused respondent No.2 Raju Singh, in the event it is assessed that the statements of the witnesses and complainant have been recorded.