Gopakumar A. v. State of Kerala and The Sub-Inspector of Police, Koothattukulam

## **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. 5095 of 2018** **CRIME NO. 737/2018 OF Koothattukulam Police Station , Ernakulam** ## **PETITIONER:** **GOPAKUMAR A. AGED 44 YEARS,S/O.APPUKKUTTAPANICKER,RESIDING AT SETHUMANDIRAM,KODANAD.P.O,PERUMBAVOOR,ERNAKULAM DISTRICT-683544.** **BY ADVS. SRI.ANOOP.V.NAIR SRI.M.S.SANDEEP SUDHAKARAN** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM.** **2 THE SUB INSPECTOR OF POLICE KOOTHATTUKULAM POLICE STATION,KOOTHATTUKULAM-686662.** ## **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.5095/2018 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 third accused in the case registered as Crime No.737/2018 of the Koothattukulam Police Station under Sections 403, 406, 409, 417, 420 and 423 read with 34 I.P.C and also under Section 120B I.P.C. 3. The case against the accused has been registered on the basis of a written complaint made by the de facto complainant before the Superintendent of Police (Rural), Aluva. The sum and substance of the allegations raised against the accused in the complaint can be stated as follows: The de facto complainant is conducting business in frozen foods under the name and style 'Himalaya Supply'. He entered into a deal with the first and the second accused for supplying him frozen chicken feet and chicken paw. The first and the second accused told the de facto complainant that the company run by them had no export licence and therefore, the products can be exported through the company by name 'Saga Natural Spice Products'. The second accused claimed to be the owner of the aforesaid company. On the basis of the representations made B.A.No.5095/2018 3 to him by the first and the second accused, the de facto complainant transferred 35,000/- U.S dollars to the account of the company 'Saga Natural Spice Products', which is actually owned by the third and the fourth accused. The licence of the aforesaid company is in the name of the fourth accused, who is the wife of the third accused. The third and the fourth accused transferred Rs.10,00,000/- on 14.2.2018 and Rs.3,00,000/- on 23.2.2018 to the account of the father of the second accused. The accused did not supply the products to the de facto complainant. They also did not return the amount received by them from him. It is alleged that the accused had hatched a conspiracy to cheat the de facto complainant and pursuant to such conspiracy cheated him. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the case diary. 5. Along with the fourth accused in the case, the petitioner had earlier filed an application for anticipatory bail as B.A.No.4101/2018. The aforesaid application was dismissed on 04.07.2018 against the petitioner. This second application for anticipatory bail is filed by him on 25.07.2018. 6. An accused has right to make successive applications for grant of bail. But, the court entertaining such B.A.No.5095/2018 4 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). 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 B.A.No.5095/2018 5 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 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. The change of circumstance pleaded by the petitioner in this application is that subsequent to the dismissal of the earlier bail application filed by him, the first and the fifth B.A.No.5095/2018 6 accused were granted anticipatory bail by another Bench of this Court on 12.07.2018. Considering the facts of the case, granting of anticipatory bail to the first and the fifth accused by another Bench of this Court can be taken as a change of circumstances entitling the petitioner to get the benefit of prearrest bail. 11. As per order dated 12.07.2018 in B.A.Nos.3984/2018 and 4115/2018, another Bench of this Court had directed the first and the fifth accused in the case to surrender before the Investigating Officer and to undergo interrogation and ordered that they shall be released on bail if they were arrested subsequently. While granting anticipatory bail to the first and the fifth accused, the learned Judge of this Court has stated as follows: _“In the complaint, there is specific allegation that the 1[st] accused had a major role to play. But, it is evident that it was the 2[nd] accused who was dealing with the de facto complainant all-through and it was the 2[nd] accused who had persuaded the de facto complainant to transfer amount to the exporting concern run by accused Nos.3 and 4. The 5[th] accused does not appear to have a major role to play. Furthermore, all the transactions are borne out from bank records as well as agreements. The applicants are persons with permanent roots in the society and_ B.A.No.5095/2018 7 _the prosecution does not have a case that any other crimes are reported against them. ”_ 12. While dismissing the earlier application for anticipatory bail filed by the petitioner, this Court had stated as follows: _“There are sufficient materials to indicate that the third accused is one of the persons who was involved in hatching the conspiracy to cheat the de facto complainant. Deeper probe is required in this regard. Custodial interrogation of the third accused is absolutely necessary to unearth materials relating to the transactions between him and the first and the second accused and his exact role in the conspiracy to cheat the de facto complainant. In these circumstances, the discretion of the court cannot be exercised in favour of the third accused to grant him the benefit of pre-arrest bail.”_ 13. The second accused in the case had been arrested and he was in judicial custody even before the dismissal of the earlier application for anticipatory bail filed by the petitioner. The first accused in the case, who had the main role in the conspiracy alleged by the de facto complainant, has been granted anticipatory bail by another Bench of this Court as noticed above. The fifth accused in this case has also been granted anticipatory bail. They have undergone interrogation by the police. During such interrogation, the police could have B.A.No.5095/2018 8 been able to collect materials indicating close alliance between the petitioner herein and the first and the fifth accused in the case. Now, what remains to be done is to confirm the information obtained by the police during the interrogation of the first and the fifth accused in the case by the interrogation of the petitioner. In that view of the matter, interrogation of the petitioner would be now necessary but custodial interrogation is not absolutely necessary. Such being the situation, I am persuaded to take a different view from the one which I had taken earlier while dismissing the earlier application for anticipatory bail filed by the petitioner, in the light of the order passed by another Bench of this Court granting anticipatory bail to the first and the fifth accused in the case. 14. As far as the case against the petitioner is concerned, it cannot be found that he had more important role in the conspiracy than the first and the fifth accused in the case who have already been granted anticipatory bail by another Bench of this Court. In these circumstances, I am inclined to grant the benefit of pre-arrest bail to the petitioner on conditions: 15. In the result, the petition is allowed and it is B.A.No.5095/2018 9 ordered as follows: 1) The petitioner shall be released on bail on executing a bond for Rs.1,00,000/- (Rupees one lakh only) with two sureties each for the like amount in the event of his arrest by the police in Crime No. 737/2018 of Koothattukulam Police Station. 2) Before releasing the petitioner on bail the Investigating Officer is entitled to interrogate him. The petitioner shall co-operate with the investigation of the case. 3) The petitioner shall appear before the investigating officer between 9 a.m and 11 a.m on all Saturdays for a period of six months from the date of his release on bail or till final report is filed in the case whichever is earlier. 4) The petitioner shall not in any manner influence or intimidate the prosecution witnesses. 5) The petitioner shall surrender his passport in the Magistrate's Court / jurisdictional court concerned within three days from the date of his release on bail. If he does not possess any passport, he shall file an affidavit to that effect in that court within that period. 6) The petitioner shall not leave the State of Kerala B.A.No.5095/2018 10 without the prior permission of the jurisdictional court concerned. 7) The petitioner shall appear before the investigating officer as and when directed by him in writing to do so. 8) If the petitioner violates any of the conditions of bail, it is open to the Court having jurisdiction over the case to cancel his bail without any further orders from this Court but in accordance with law. 9) If the petitioner requires the passport, if any, surrendered before the court for any purpose, he is at liberty to make application before the court concerned for release of the passport after the expiry of a period of three months from the date of his release on bail. If any such application is made, the court concerned is at liberty to pass appropriate orders in that regard on merits. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr/29/9/18 True Copy PS to Judge