This is the second anticipatory bail application by the petitioner under Section 438 Cr.P.C. The court dismissed it, holding there was no change in fact situation or law since the earlier rejection. Successive applications without new grounds are liable to be dismissed summarily.
Bail application under Section 438 Cr.P.C. dismissed.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
MONDAY ,THE 01ST DAY OF OCTOBER 2018 / 9TH ASWINA, 1940
Bail Appl..No. 3201 of 2018
CRIME NO. 746/2017 OF Kasaba Police Station, Kozhikode
PETITIONER/ACCUSED NO.2:
ASWANTH.N
AGED 20 YEARS,S/O.N.SANTOSH,ASWANJALI ILLAM,VALAYANADU KAVU MANKAVU,KOZHIKODE TALULK & DISTRICT-679584.
BY ADVS. SRI.K.S.HARIHARAPUTHRAN SRI.DIPU JAMES SRI.GEORGE MATHEW SRI.M.D.SASIKUMARAN SRI.SETHURAM DHARMAPALAN SRI.SUNIL KUMAR A.G
RESPONDENTS/COMPLAINANTS:
1 STATE OF KERALA REP.BY STATION HOUSE OFFICER,KASABA POLICE STATION,KOZHIKODE CITY,THROUGH PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM-682031.
PP SMT K K SHEEBA
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 27.09.2018, THE COURT ON 01.10.2018 PASSED THE FOLLOWING:
B.A.No.3201/2018
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O R D E R
This is the second application for anticipatory bail filed by the petitioner under Section 438 Cr.P.C.
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learned Public Prosecutor. Perused the case diary.
2005 SC 921 , the Apex Court has held as follows:
“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
B.A.No.3201/2018
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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” (emphasis supplied).
pre-arrest bail. But, the second application shall clearly spell out the change in fact situation after the dismissal of the earlier application filed for the same relief. Change in fact situation or in law is sine qua non for a second application for pre-arrest bail. It is the actual test for entertaining the second application for anticipatory bail. A fact, which was not in existence at the time of dismissing the earlier application but which has come into existence subsequently, can only be considered as a change in fact situation. Ordinarily, the matters which had been canvassed in the earlier application cannot be permitted to be re-agitated on the same grounds in the second application. Normally, a person is not entitled to file second application for bail on the ground that the court on earlier occasion failed to consider any particular aspect or material on record. A plea for review of the earlier order cannot be permitted to be made under the guise of a second application. Filing successive bail applications, without there being any change in circumstances, warrants deprecation and disapproval by the court. Persons who try to play with the
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process of law are not entitled to get the protection of law. Subsequent application for pre-arrest bail on same grounds is liable to be rejected even summarily.
Court in Vineeth v. State of Kerala (2015 (5) KHC 224) .
petitioner was dismissed against him by this Court stating as follows:
“The first information statement given to the police reveals that accused Aswanth (the fifth petitioner) had beaten the de facto complainant on both legs with an iron rod. He was allegedly an active participant in the commission of the offences. Considering his role in the incident and nature of the act alleged to have been committed by him, I find that it is not proper to grant him pre-arrest bail.”
above. The petitioner cannot seek a review of the earlier order passed by this Court under the guise of a second application for anticipatory bail.
view from the one which was taken by this Court in the order passed in the earlier bail application filed by the petitioner. The
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application is liable to be dismissed.
In the result, the application is dismissed.
R.NARAYANA PISHARADI, JUDGE
jsr/29/9/18
True Copy
PS to Judge
3 issues framed by the court
Whether a second anticipatory bail application can be entertained without any change in fact situation or law justifying a different view from the earlier dismissal.
Whether the petitioner has established any fresh grounds persuading the court to grant bail after a previous similar application was rejected.
If the petitioner cannot seek a review of the earlier order under the guise of a subsequent anticipatory bail application.
Colour shows how this judgement treated each authority
Kalyan Chandra Sarkar v. Rajesh RanjanReferred¶27
Kalyan Chandra Sarkar v. Rajesh Ranjan : AIR 2004 SC 1866 · Who else cites this
Kalyan Chandra Sarkar v. Pappu YadavExplained¶28
Kalyan Chandra Sarkar v. Pappu Yadav : AIR 2005 SC 921 · Who else cites this
Vineeth v. State of KeralaReferred¶40
Vineeth v. State of Kerala (2015 (5) KHC 224)
1 provisions across 1 enactments
Aswanth.N
State of Kerala
R. Narayana Pisharadi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
