Dismissed

Shaiju@Laiju v. State of Kerala

Kerala HC6 Nov 2020Bail Appl./5738/2020

Case brief

AI extract

What is this about?

The Court dismissed a second pre-arrest bail application filed under Section 438 CrPC. Relying on precedent regarding successive applications, the Judge held that no change in fact situation or law warranted reconsideration, especially given the严重的 nature of the rape charge and the petitioner's criminal antecedents.

What did the court decide?

Application for pre-arrest bail dismissed.

Shaiju@Laiju Vs State of Kerala — Bail and Remand | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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FRIDAY, THE 06TH DAY OF NOVEMBER 2020 / 15TH KARTHIKA, 1942

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Bail Appl..No.5738 OF 2020

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CRIME NO.72/2020 OF Kurathikadu Police Station, Alappuzha

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PETITIONER/ACCUSED:

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SHAIJU@LAIJU, AGED 23 YEARS, PONMANAKIZHAKKETHIL, PAZHAKULAM MURI, PALLICKAL VILLAGE, PATHANAMTHITTAPIN-691554.

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BY ADV. SRI.D.KISHORE

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RESPONDENT/S:

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1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.

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2 STATION HOUSE OFFICER, KURATHIKADU POLICE STATION, ALAPPUZHA.

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3 XXX AGED 20 YEARS MASKED

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SRI BIMAL K NATH, SENIOR PUBLIC PROSECUTOR

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Bail Appl..No.5738 OF 2020 2

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ORDER

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This application is filed under Section 438 of the Cr.P.C.

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The petitioner herein had approached this Court earlier and had

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filed B.A.No.3918 of 2020. After extensively hearing the learned counsel appearing for the petitioner and the learned Public Prosecutor, the application was dismissed by Annexure-II order.

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Undaunted by the dismissal of the earlier application of prearrest bail as early as in the month of July, 2020, the petitioner herein has approached this Court yet again seeking the very same relief. Various contentions are advanced. The petitioner has also produced an affidavit of the victim stating that she has no grievance against the petitioner.

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The learned Public Prosecutor on instructions submitted that no reliance can be placed on the affidavit purported to have been signed by the victim particularly in view of the fact that the offence alleged in the instant case is one under Section 376 of the IPC. The petitioner is a person with criminal antecedents and the possibility of the victim having been threatened cannot be ruled out.

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Bail Appl..No.5738 OF 2020 3

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5. The Apex Court in Kalyan Chandra Sarkar v. Pappu Yadav

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(AIR 2005 SC 921), has held that 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 be 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.

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This Court in Vineeth v. State of Kerala [2005 (5) KHC 224],

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has held that though the accused has a right to make a second application for pre-arrest bail, he is bound to clearly spell out the change in fact situation, to canvass for such an order. Ordinarily, the matters, which has been canvassed in the earlier application, cannot be re-agitated on the very same grounds in the subsequent applications. It was held that filing successive bail applications without there being a change in fact situation would clearly amount to abuse of process.

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In the case on hand, the allegation against the petitioner is that he had subjected a disabled young girl to rape. This Court had earlier considered the application for pre-arrest bail and the same was dismissed. Having regard to the nature of allegations, I do not think that a different view is warranted at this stage. This is not a case wherein the petitioner

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Bail Appl..No.5738 OF 2020 4

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can be granted an order of pre-arrest bail.

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This application will stand dismissed.

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SD/-

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RAJA VIJAYARAGHAVAN V

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JUDGE

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//TRUE COPY// P.A.TO JUDGE

Shaiju@Laiju v. State of Kerala

Case brief

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Shaiju@Laiju v. State of Kerala

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