VIJAY KUMAR VERMA, J. - (1.) THIS 2nd bail application has been moved on behalf of the- appellant-accused Rajveer, who has been convicted under section 302 read with section 34 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1, 50, 000/- by the judgment and order dated 23.11.2007, passed by the Additional Sessions Judge, Court No. 4, Ghaziabad, in S.T. No. 291 of 1997 (State v. Dharampal and others'). By the same judgment the appel­lants Dharampal and Sudhir were also convicted and sentenced as mentioned above.
(2.) 1st bail application of all the ap­pellants was considered by a Division Bench, in which one of us (Vijay Kumar Verma, J.) was a member vide order dated 13.2.2008, whereby the appellants Dharampal and Sudhir were admitted to ban, but the prayer for bail of the appli­cant-appellant Rajveer was rejected. We have heard Sri D.N. Wall, learned Senior Advocate, assisted by Sri Lov Srivastava Advocate appearing for the appellant-applicant, Sri V.K. Mishra learned Additional Government Advocate for the State and perused the record.
(3.) BEFORE coming to the arguments advanced by the parties Counsel on the second bail application, we would like to refer the case of Kalyan Chandra Sarkar etc. v. Rajesh Ranjan @ Pappu Yadav, 2005 (51) ACC 727 in which the Hon'ble Apex Court has held that "a person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In such cases, if the circum­stances then prevailing require that such person be released on bail, in spite of his earlier applications being rejected, the Court can do so". In paras 19 and 20 of the report at page 732, the following observa­tions have been made by the Hon'ble Apex Court: - "19. The principles of res judicata and such analogous principles although are not applicable in a criminal proceedings, still the Courts are bound by the doctrine of judicial discipline having regard to the hi­erarchical system prevailing in our country. The findings of a higher Court or a co-ordinate Bench must re­ceive serious consideration at the hands of the Court entertaining a bail application at a later stage when the same had been rejected earlier. In such an event, the Courts must give due weight to the grounds which weighed with the former or higher Court in re­jecting the bail application. Ordinar­ily, the issues which had been can­vassed earlier would not tie permitted to be re-agitated on the same grounds, as the same would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting. (italics is our) 20. The decisions given by a superior forum, undoubtedly, is binding on the subordinate for 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 the guaranty conferred on a person under Article 21 of the Constitution of India, it is open to the aggrieved person to make suc­cessive bail applications even on a ground already rejected by Courts earlier including the Apex Court of the country." (italics is our) ;