ORDER : BY THE COURT 1. The instant Criminal Misc. Application for Bail Cancellation 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 22.12.2022 passed by the learned Additional Sessions Judge, Nathdwara in Criminal Misc. Case No.233/2022 whereby the respondent Nos. 2 & 3, Ramniwas and Ranjeet were granted bail under Section 439 Cr.P.C. by exercising powers with impropriety and 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. After the above FIR was registered, the investigation commenced, and during the investigation suspicion was cast upon the accused Ramniwas and Ranjeet. Accused Ramniwas and Ranjeet were arrested on 23.05.2022, whereas the other accused Raju Singh, who was the first informant and son of the deceased, was arrested on 22.05.2022. As per the allegations, there was cahoots between the above three. 4. Heard the counsel for the petitioner and Shree Tushar Mod, learned counsel representing the accused as well gone through the relevant material. The startling fact of the case regarding the manner of disposal of the two bail applications shook the consciousness of the Court. 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. 5. Interestingly, on the 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. 5. Interestingly, on the 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 since the first bail application No.177/2022 had been dismissed as not pressed on the very same day i.e. on 15.12.2022. The successive bail application No.233/2022 under Section 439 Cr.P.C. was put to hearing and whereafter the learned Additional Sessions Judge, Nathdwara has allowed the Bail application. 6. The first Bail application was dismissed as not pressed by the counsel for the respondents and in the manner in which the subsequent Bail application was filed, on the very same day, which was allowed by the learned Additional Sessions Judge vide order impugned is against propriety and judicial discipline as the same was a subsequent bail application, not the first one. 7. 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. 8. 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. 8. It would be pertinent to mention here that the nature and gravity of the accusation against the accused respondents of this case and one another accused in the same case Raju Singh 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 that case. Where a bail application under section 439 CrPC of a similarly situated accused is considered on merit and dismissed on the ground of 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 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.” 9. Once a bail application is dismissed as not pressed by the 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 been dismissed 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.” 10. Here in this case 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/respondent 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 Raju singh by a detailed order wherein gravity and nature of the offence as well as availability of material against all accused were taken as ground 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 bail application was rejected as not pressed and the bail of co accused was dismissed on merits, persuaded this Court to hold that acceptance of subsequent bail order dated 22.12.2022 without any circumstantial change and in the same factual situation by the Sessions judge is absolutely perfunctory. 11. 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. 12. Considering the overall facts and circumstances of the case, this Court is inclined to accept the instant application for cancellation of bail. 13. Accordingly, the instant application for cancellation of bail is allowed. The order dated 22.12.2022 passed by the learned Additional Sessions Judge, Nathdwara in Criminal Case No.233/2022 of 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. 13. Accordingly, the instant application for cancellation of bail is allowed. The order dated 22.12.2022 passed by the learned Additional Sessions Judge, Nathdwara in Criminal Case No.233/2022 of 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 Ramniwas and Ranjeet shall surrender before the trial court within 90 days from today failing which, the warrant of arrest shall be issued against them 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 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 fresh Bail application of the accused respondents No.2 & 3, Ramniwas and Ranjeet, in the event it is assessed that the statements of the witnesses and complainant have been recorded.