Abdul Aleem v. State of Kerala

**“CR”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI FRIDAY, THE 29TH DAY OF JANUARY 2021 / 9TH MAGHA, 1942** ## **Bail Appl..No.866 OF 2021** **CRIME NO.1400/2017 OF KASABA POLICE STATION, PALAKKAD** ## **PETITIONER/ACCUSED:** **ABDUL ALEEM AGED 64 YEARS SON OF ABDUL KAREM, NILA MANZIL, ATHIKODE PO, PALAKKAD PIN-678555** **BY ADV. SRI.K.ANAND** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF**| ||**KERALA, ERNAKULAM**| ||**PIN-682031**| |**2**|**STATION HOUSE OFFICER, KASABA POLICE STATION,**| ||**STATION HOUSE OFFICER**| ||**KASABA POLICE STATION,**| ||**KAILAS NAGAR, PUDUSSERRY WEST,**| ||**PALAKKAD – 678 622.**| ||**PIN-678622.**| ## **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SRI B JAYASURYA SR PP** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 27.01.2021, THE COURT ON 29.01.2021 PASSED THE FOLLOWING:** B.A.No.866/2021 2 ## **“CR”** ## **R.NARAYANA PISHARADI, J** ******************************** B.A.No.866 of 2021 ----------------------------------------------------Dated this the 29[th] day of January, 2021 ## **O R D E R** This is the second application for anticipatory bail filed by the petitioner under Section 438 of the Code of Criminal Procedure, 1973 (for short 'the Code'). 2. The petitioner is the accused in the case registered as Crime No.1400/2017 of the Kasaba police station, Palakkad under Sections 468, 471 and 420 I.P.C. 3. The prosecution case is as follows: On 06.04.2016, the petitioner filed an application before the Village Officer, Elappully-II Village for granting possession certificate in respect of the property owned by his mother and his brothers. Along with the aforesaid application, he also filed the order dated 20.03.2013 passed by the Additional Tahsildar, Palakkad regarding B.A.No.866/2021 3 conversion of the property as dry land. Possession certificate was issued to the petitioner on the basis of this application. Subsequently, it was found out that no such order had been passed by the Additional Tahsildar, Palakkad and that the order produced by the petitioner in the Village Office was a fake and fabricated document. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. The previous application (B.A.No.1911/2018) for anticipatory bail filed by the petitioner was dismissed by this Court by order dated 18.6.2018. That application was dismissed on the finding that there were sufficient materials to show the complicity of the petitioner in the crime and for the reason that custodial interrogation of the petitioner would be necessary to find out how he forged the document or from where he got it. 6. An accused has a right to make successive applications for grant of bail. The court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, B.A.No.866/2021 4 the court also has a duty to record what are the fresh grounds which may persuade it to take a view different from the one taken in the earlier applications (See **Kalyan Chandra Sarkar v. Rajesh Ranjan: AIR 2004 SC 1866** ). 7. 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 (See **Kalyan Chandra Sarkar v. Pappu Yadav: AIR 2005 SC 921** ). 8. The aforesaid principles have been highlighted by this Court in **Vineeth v. State of Kerala** ( **2015 (5) KHC 224** ) and **Pandi v. State of Kerala** ( **2018 (4) KHC 782: 2018 (4) KLT 249** ). 9. Is there any change of circumstance or situation in the case since the dismissal of the previous application for anticipatory bail filed by the petitioner ? Learned counsel for the B.A.No.866/2021 5 petitioner contended that the petitioner appeared before the investigating officer and he was interrogated. Learned counsel would contend that since the petitioner has co-operated with the investigation of the case, he may be granted pre-arrest bail. 10. Learned Public Prosecutor has submitted that the petitioner had appeared before the investigating officer after the dismissal of the earlier application for anticipatory bail. Learned Public Prosecutor has also submitted that the finger prints of the petitioner were collected and the document allegedly forged by him was sent for forensic examination. 11. After the dismissal of the previous application for anticipatory bail, the petitioner appeared before the investigating officer. He was interrogated by the police. The investigating officer did not then find it necessary to arrest the petitioner. If custodial interrogation of the petitioner was necessary, the investigating officer would have arrested the petitioner and interrogated him and produced him before the jurisdictional court and, if necessary, sought detention of the petitioner in police custody. No such course was adopted. This indicates that custodial interrogation of the petitioner is not essential to have B.A.No.866/2021 6 an effective investigation of the case. Certainly, it is a change of situation, which persuades this Court to consider the second application for anticipatory bail in favour of the petitioner. 12. If the person who has applied for anticipatory bail has fully co-operated with the investigation of the case and if there is no reason to believe that he will not do so in future also, it can be treated as one of the grounds to grant him the discretionary relief (See **Srinivasa Rao v. State of Kerala : 2012 (4) KHC 315: 2013 (2) KLT 924** ). 13. In order to get the relief of pre-arrest bail, the applicant must show that he has "reason to believe' that he may be arrested for a non-bailable offence. The use of the expression "reason to believe" in Section 438 of the Code shows that the belief that the applicant may be so arrested must be founded on reasonable grounds (See **Gurbaksh Singh Sibbia v. State of Punjab : AIR 1980 SC 1632** ). 14. If the investigating officer has not arrested the petitioner inspite of his appearance before him, can it be found that there is reasonable basis for the apprehension of the B.A.No.866/2021 7 petitioner that he would be arrested in the case ? Learned Public Prosecutor has not made any submission before this Court that the investigating officer does not intend to arrest the petitioner during the course of the investigation. Therefore, it can be found that the petitioner has got a genuine apprehension of arrest by the police in the case. 15. Having considered the aforesaid circumstances, I find that the petitioner is entitled to get an order under Section 438 of the Code in his favour. 16. Consequently, the application is allowed and it is ordered as follows: (i) The petitioner shall be released on bail on executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two sureties each for the like amount in the event of his arrest by the police in Crime No.1400/2017 of the Kasaba police station, Palakkad. (ii) The petitioner shall appear before the investigating officer between 10 a.m and 12 noon on the Second Saturday of every mon th, till the filing of the final report in the case. B.A.No.866/2021 8 (iii) The petitioner shall not in any manner intimidate or influence the prosecution witnesses. (iv) The petitioner shall appear before the investigating officer as and when directed in writing to do so. (v) The petitioner shall not leave the State of Kerala without the prior permission of the jurisdictional court concerned. (vi) If the petitioner violates any of the conditions of bail, the jurisdictional court is at liberty to cancel the bail without any further orders from this Court but in accordance with law. **Sd/-** **R.NARAYANA PISHARADI, JUDGE** al/-