Chandran s/o Chellayyan Nadar v. State of Kerala

## **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. 5000 of 2018** **CRIME NO. 569/2018 OF Vellarada Police Station , Thiruvananthapuram** ## **PETITIONER/ACCUSED NO.1:** **CHANDRAN S/O. CHELLAYYAN NADAR, AGED 55 YEARS, EREPUNNAKAD, MANNAMKONAM P.O., VELLARADA VILLAGE, THIRUVANANTHAPURAM DISTRICT.** **BY ADV. SRI.S.NIKHIL SANKAR** ## **RESPONDENT/COMPLAINANT/STATE:** **STATE OF KERALA** **REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.[REPRESENTING STATION HOUSE OFFICER, VELLARADA POLICE STATION, THIRUVANANTHAPURAM DISTRICT]** ## **PUBLIC PROSECUTOR 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.5000/2018 2 ## **O R D E R** This is the second application for anticipatory bail filed by the petitioner under Section 438 Cr.P.C. 2. The petitioner is the first accused in the case registered as Crime No.569/2018 of the Vellarada Police Station under Sections 294(b), 323 and 326 read with 34 I.P.C. 3. The prosecution case is that on 27.4.2018, at about 20.00 hours, while the de facto complainant was standing at a public road, he demanded the first accused to repay the amount of Rs.1,50,000/-, which was borrowed by him and then the first accused beat and hit him with his hands and the second accused who came there kicked him down. It is alleged that then the first accused took a stick and repeatedly beat on both hands of the de facto complainant with the stick, thereby causing fracture to the bones of both his hands. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the case diary. 5. Along with the second accused in the case, the petitioner had earlier filed an application as B.A.No.3453/2018 for granting anticipatory bail. The aforesaid application was B.A.No.5000/2018 3 dismissed as against the petitioner on 30.05.2018. This second application for anticipatory bail is filed by him on 20.07.2018. 6. An accused has right to make successive applications for grant of bail. But, 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, the court also has a duty to record what are the fresh grounds which 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. In **Kalyan Chandra Sarkar v. Pappu Yadav : AIR** ## **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 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). B.A.No.5000/2018 4 8. An accused has right to make a second application for 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 process of law are not entitled to get the protection of law. Subsequent B.A.No.5000/2018 5 application for pre-arrest bail on same grounds is liable to be rejected even summarily. 9. The principles stated above have been highlighted by this Court in **Vineeth v. State of Kerala (2015 (5) KHC 224)** . 10. While dismissing the earlier application for anticipatory bail filed by the petitioner, this Court had stated as follows: _“5. There is a specific allegation against the first petitioner, who is the first accused in the case, that even after the de facto complainant fell down, he repeatedly beat him on both hands with a stick, thereby causing fracture to bones of both the hands. Considering the nature and gravity of the offence allegedly committed by the first petitioner, I find that the discretion of the court cannot be exercised in favour of the first petitioner to grant him the benefit of pre-arrest bail.”_ 11. The petitioner has pleaded a change in the fact situation stating that on the date of the alleged incident he was hospitalised and he was under treatment. Annexures A1 to A4 documents (treatment certificate, discharge card etc.) are produced to show that he was admitted in a hospital on B.A.No.5000/2018 6 26.04.2018 and he was discharged on 02.05.2018 from there. Therefore, the petitioner would plead that the case against him is a false one. 12. The aforesaid plea of the petitioner cannot be entertained in this second application for anticipatory bail for more than one reason. In the first place, it is quite unimaginable that if the petitioner was admitted in a hospital on the date and time of the alleged incident, he would have omitted to produce documents in that regard at the time of consideration of the earlier application for bail. It was the most important and crucial plea which he could have taken to contend that the case against him is false. The very fact that he did not produce such documents at the time of the earlier application for anticipatory bail, raises doubt regarding the genuineness of the documents now produced by the petitioner. 13. In the second place, the petitioner has got a plea that it was the de facto complainant who attacked him and it was on account of such assault made on him by the de facto complainant that he was hospitalised and intimation was given to the police from the hospital but the police did not take any action. If that be so, it is not explained why he has not so far B.A.No.5000/2018 7 taken any steps to pursue action against the de facto complainant. 14. In the third place, on the basis of the documents which the petitioner could have obtained and produced at the time of consideration of the earlier application for anticipatory bail but which were not produced by him, the Court cannot review the earlier order passed by it. A plea for review of the earlier order dismissing the application for anticipatory bail cannot be entertained under the guise of a second application for anticipatory bail. 15. In the fourth place, the plea now raised by the petitioner is essentially a plea of alibi. It is a plea to be raised by him at the defence stage of the trial of the case. The merits of such a plea cannot be looked into by the Court at the time of considering the application for anticipatory bail. 16. In the fifth place, the pros and cons of the prosecution case and the defence case cannot be gone into by the Court at the time of consideration of an application for anticipatory bail and decide which is the true version. Appreciation of materials produced by the accused to find out the veracity of the case pleaded by him cannot be done at this B.A.No.5000/2018 8 stage. The Court cannot conduct a roving enquiry into the materials produced by the petitioner/accused to find that the prosecution case against him is false. 17. In the aforesaid circumstances, this second application for anticipatory bail cannot be considered in favour of the petitioner and it is liable to be dismissed. In the result, the application is dismissed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr/29/9/18 True Copy PS to Judge