M. Pandi @ Pechi Pandi and Madhu Rajmuthu Raj v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY ,THE 18TH DAY OF SEPTEMBER 2018 / 27TH BHADRA, 1940** ## **Bail Appl..No. 5234 of 2018** **CRIME NO. 442/2018 OF BALARAMAPURAM POLICE STATION , THIRUVANANTHAPURAM** ## **PETITIONERS/ACCUSED 1 AND 2:** |**1**|**M.PANDI @ PECHI PANDI**| |---|---| ||**AGED 21 YEARS,S/O.MUTHU RAJ,AMBEDKAR**| ||**STREET,PANANKULAM,NANGUNERI,THIRUNELVELI,TAMIL NADU.**| |**2**|**MADHU RAJMUTHU RAJ**| ||**AGED 45 YEARS,S/O.VANAMAMALAI,AMBEDKAR**| ||**STREET,PANANKULAM,NANGUNERI,THIRUNELVELI,TAMIL NADU.**| ||**BY ADV. SRI.SABU S.KALLARAMOOLA**| ## **RESPONDENTS/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM.** ## **PUBLIC PROSECUTOR SRI.K.B.RAMANAND(SR)** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 18.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No.5234/2018 2 **“CR”** ## **O R D E R** Is a person entitled to file a second application for pre-arrest bail under Section 438 of the Code of Criminal Procedure, 1973, without establishing any change in the circumstances of the case since the dismissal of the first application filed by him for the same relief? This question arises for consideration here. 2. The petitioners are the first and the second accused in the case registered as Crime No.442/2018 of the Balaramapuram police station under Sections 143, 147, 148, 341, 294(b), 323, 324, 326 and 307 read with 149 I.P.C. Along with the third and the fourth accused in the case, the petitioners had filed an application for anticipatory bail as B.A.No.3213/2018 before this Court. As per the order dated 11.06.2018 in B.A.No.3213/2018, this Court granted pre-arrest bail to the third and the fourth accused in the case but rejected the prayer made by the petitioners for that relief. The petitioners have filed this second application for pre-arrest bail on 30.07.2018 (but the application was moved before this Court only on 14.09.2018). B.A.No.5234/2018 3 3. The prosecution case is that on 26.03.2018, at about 22.00 hours, at the place Uchakada, the accused together wrongfully restrained the de facto complainant and attacked him with deadly weapons and made attempt to murder him. It is alleged that the first accused caught hold of the neck of the de facto complainant and pushed him down and beat him on the head with an iron lever stating that he would kill him. The first accused also beat the de facto complainant on the forehead and the face with the iron lever causing fracture to the bones. The second accused stabbed him on the right hand and the stomach with a weapon. 4. I have heard the learned counsel for the petitioners and the learned Public Prosecutor and also perused the report filed by the investigating officer. 5. Learned counsel for the petitioners contended that the petitioners are totally innocent and they have been implicated in a false case by the police at the instance of the de facto complainant. Learned counsel contended that no such incident as alleged by the prosecution had taken place. Learned Public Prosecutor opposed the prayer for granting pre-arrest bail to the petitioners. Learned Public Prosecutor has pointed out that the petitioners have not pleaded or established any change in the circumstances of the case since the dismissal of the earlier application for pre-arrest bail filed by them. B.A.No.5234/2018 4 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). ## 8. In **Aneesh v. State of Kerala : 2014 (1) KHC 633: 2014** - **(1) KLT 790** , this Court has observed as follows: _“If the case put forward by the accused was considered on the merits and an application for anticipatory bail was dismissed as such, it may not be proper for that accused to apply again for anticipatory bail in the absence of any change of_ B.A.No.5234/2018 5 _circumstances. Finality of orders passed by the Court requires that no party should be allowed to put forward similar contentions in successive applications. Unlike the civil proceeding, the rights of parties are not finally determined in an application for anticipatory bail under Section 438 of Cr.P.C nor a final adjudication made as in a civil suit. Therefore, when circumstances change, the accused concerned could approach the Court for relief though that relief was refused on an earlier occasion”._ 9. An accused has right to make a second application for prearrest 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 B.A.No.5234/2018 6 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. 10. The principles stated above have been highlighted by this Court in **Vineeth v. State of Kerala (2015 (5) KHC 224)** . This Court has also held that successive bail applications without showing any change in the fact situation or circumstance requiring the invocation of the extraordinary jurisdiction of the High Court or the Court of Session under Section 438 of the Code of Criminal Procedure can only be regarded as an abuse of the process of court and non-mentioning of any change in the circumstances warranting a re-look in the matter can only result in rejection of the plea. 11. In the instant case, this second application for pre-arrest bail filed by the petitioners, does not mention any change in the fact situation or circumstances of the case since the dismissal of the first application. It is only stated that the investigation in the case is almost completed. Learned Public Prosecutor has refuted this plea. The report of the investigating officer shows that the weapons B.A.No.5234/2018 7 allegedly used by the petitioners could not be recovered so far and the fifth accused in the case is absconding. 12. The earlier application for anticipatory bail filed by the petitioners was dismissed by this Court mainly on three grounds. In the first place, this Court had found that there is a strong prima facie case against the petitioners. Though this Court had not specifically used the expression “strong prima facie case”, this Court had specifically pointed out the overt acts allegedly committed by the petitioners and the attempt made by them to kill the de facto complainant. In the second place, this Court had pointed out that the weapons allegedly used by the petitioners could not be recovered. In the third place, this Court had pointed out that custodial interrogation of the petitioners was essential to have an effective investigation. There is no change in any of the the aforementioned three circumstances. There is no change in this fact situation of the case. There has not been any change in the aforesaid three circumstances of the case since the dismissal of the earlier application for pre-arrest bail filed by the petitioners. 13. In the aforesaid circumstances, the present application for pre-arrest bail filed by the petitioners is only an abuse of the process of the court and it is liable to be dismissed. B.A.No.5234/2018 8 ## Consequently, the application is dismissed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr True Copy PS to Judge