Sarkar v. Rajesh Ranjan (AIR 2005 SC 921) considered the legality and
propriety of successive bail applications. Relevant portion is quoted
hereunder:
"19.The principles of res judicata and such
analogous principles although are not applicable
in a criminal proceeding, still the Courts are
bound by the doctrine of judicial discipline having
regard to the hierarchical system prevailing in our
country. The findings of a higher Court or a co-
ordinate bench must receive serious
consideration at the hands of the Court
entertaining a bail application at a later stage
when the same had been rejected earlier. In such
an event, the courts must give due weight to the
grounds which weighed with the former or higher
court in rejecting the bail application. Ordinarily,
the issues which had been canvassed earlier
would not be permitted to be re-agitated on the
same grounds, as the same it would lead to a
speculation and uncertainty in the administration
of justice and may lead to forum hunting.
20. The decisions given by a superior
forum, undoubtedly, is binding on the subordinate
fora on the same issue even in bail matters
unless of course, there is a material change in the
fact situation calling for a different view being
taken. Therefore, 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.
Therefore, we are not in agreement with the
argument of learned counsel for the accused that
in view the guaranty conferred on a person under
Article 21 of the Constitution of India, it is open to
the aggrieved person to make successive bail
applications even on a ground already rejected by
courts earlier including the Apex Court of the
country."
19. In the light of the principles of law stated in the binding
precedent by the Supreme Court, there cannot be any doubt 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 Court of Sessions under Section 438
Cr.P.C. can only be regarded as an abuse of the process of court.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE A.HARIPRASAD
THURSDAY,THE 1ST DAY OF OCTOBER 2015
Bail Appl..No. 5958 of 2015 ()
VINEETH, S/O.VIJAYAN, Vs STATE OF KERALA
Citation;2016 CRLJ 533 Kerala
Is it legal and proper for a person apprehending arrest in a
non-bailable offence, whose application under Section 438 of the Code of
Criminal Procedure, 1973 (in short, "Cr.P.C.") was dismissed by the High
Court or the Court of Sessions, as the case may be, to approach the same
court with successive applications seeking the relief without establishing
any change in the circumstances? Is it proper on the part of the Court of
Sessions to entertain a bail application filed by an accused after the
dismissal of his previous application by the High Court? These questions
of importance are raised in this petition.
2. Heard both sides.
3. This application by the petitioner, apprehending arrest in Crime
No.559 of 2015 of Pandalam Police Station, is the third in succession. He,
along with other accused, is involved in offences punishable under
Sections 143, 144, 148, 149, 447, 323, 324 and 326 of the Indian Penal
Code (in short, "IPC"). There are specific allegations against the petitioner
that he was armed with a dangerous weapon, viz., an iron rod and he
unleashed attack on the defacto complainant causing serious injuries.
4. The petitioner, along with other accused in the crime
approached this Court for the first time with a bail application, B.A. No.2905
of 2015, seeking pre-arrest bail under Section 438 Cr.P.C. This Court, vide
order dated 01.06.2015, considered the merit of the application elaborately
and found that this petitioner and some other accused were not entitled to
get any relief under Section 438 Cr.P.C. Prayers in that regard made by
other accused had been allowed. Thereafter, this petitioner again moved
this Court seeking a pre-arrest bail as per B.A.No.3981 of 2015. By order
dated 13.07.2015, this Court dismissed the application finding that there
was no subsequent development justifying the claim. Now the petitioner
has again approached this Court with the application for the third time
without mentioning any special reason for considering his plea under
Section 438 Cr.P.C. I have no hesitation to hold that the attempt of the
petitioner is nothing but an abuse of the process of court. It amounts to a
forum hunt. I am also of a definite view that such an application, if
entertained, will bring in disrepute only to the justice dispensation system.
There is no doubt in my mind to hold that this application deserves only a
dismissal. Reasons for substantiating my view are stated in the
succeeding paragraphs as I wish to pronounce the law on the point.
5. Brief legislative history of the relevant provision will be useful.
Under the old Cr.P.C., there was no specific provision for the grant of
anticipatory bail. It was the view of several High Courts that unless a
person was under restraint, ie., in legal custody, no bail could be granted.
Therefore, the Law Commission in 41st report suggested for incorporating a
provision for directing the release of a person on bail prior to his arrest
(commonly known as anticipatory bail). Law Commission took note of the
fact that necessity for granting anticipatory bail arises mainly because
sometimes influential persons try to implicate their rivals in false cases for
the purpose of disgracing them or for other purposes getting them detained
in jail. It was also observed that in recent times with the accentuation of
political rivalry, this tendency is showing signs of steady increase. Apart
from false cases, where there exist reasonable grounds for holding that a
person accused of an offence is not likely to abscond or otherwise misuse
his liberty while on bail, no justification could be seen in requiring him first
to submit to custody, remain in prison for some days and then apply for
bail. These are the observations made by the Law Commission while
recommending the incorporation of Section 438 in the Cr.P.C.
6. Later, this provision underwent amendment by Cr.P.C.
(Amendment) Act, 2005. Sub-section (1) of Section 438 Cr.P.C. has been
substituted by the new Sub-sections (1), (1A) and (1B). First part of the
Section sets out the conditions under which a person can make an
application for anticipatory bail. It further says that the power to grant
anticipatory bail should be exercised by the High Court or the Court of
Sessions after taking into consideration certain circumstances. It
recognizes the power of the court to issue an interim order for the grant of
anticipatory bail. Secondly, if the court does not reject the application for
grant of anticipatory bail and makes an interim order of bail, it should
forthwith give notice to the Public Prosecutor and Superintendent of Police
and the question of bail would be examined in the light of the respective
contentions of the parties. Thirdly, the presence of the person seeking
anticipatory bail shall be obligatory at the time of final hearing of the
application and passing of the final order, if on an application made by the
Public Prosecutor reasons therefor are shown or the court considers that
such presence is necessary in the interest of justice.
7. Sub-section (2) of Section 438 Cr.P.C. prescribes the
conditions which should be attached to the order of bail, if the court deems
fit to grant it in favour of the petitioner.
8. The court would grant or refuse anticipatory bail after taking
into consideration the following factors, viz.,
(i) the nature and gravity of the accusation
(ii) the antecedents of the applicant including the fact as to
whether he has previously undergone imprisonment on conviction by a
court in respect of any cognizable offence
(iii) the possibility of the applicant fleeing from justice and
(iv) whether the accusation has been made with the object
of injuring or humiliating the applicant by having him arrested.
The list is not exhaustive. Judicial pronouncements are aplenty showing
other factors. Depending on the facts and circumstances of each case,
there can be other valid reasons requiring a consideration either for the
grant or refusal of a pre-arrest bail. Supreme Court in Siddharam
Satlingappa Mhetre v. State of Maharashtra (AIR 2011 SC 312) has
enumerated certain factors and parameters that can be taken into
consideration by the court while dealing with bail applications. Paragraph
122 reads as follows:
"The following factors and parameters can be
taken into consideration while dealing with the
anticipatory bail:
i. The nature and gravity of the accusation and the
exact role of the accused must be properly
comprehended before arrest is made;
ii. The antecedents of the applicant including the
fact as to whether the accused has previously
undergone imprisonment on conviction by a Court in
respect of any cognizable offence;
iii. The possibility of the applicant to flee from
justice;
iv. The possibility of the accused's likelihood to
repeat similar or the other offences.
v. Where the accusations have been made only with
the object of injuring or humiliating the applicant by
arresting him or her.
vi. Impact of grant of anticipatory bail particularly in
cases of large magnitude affecting a very large
number of people.
vii. The courts must evaluate the entire available
material against the accused very carefully. The
court must also clearly comprehend the exact role of
the accused in the case. The cases in which
accused is implicated with the help of sections 34
and 149 of the Indian Penal Code, the court should
consider with even greater care and caution
because over-implication in the cases is a matter of
common knowledge and concern;
viii. While considering the prayer for grant of
anticipatory bail, a balance has to be struck
between two factors namely, no prejudice should be
caused to the free, fair and full investigation and
there should be prevention of harassment,
humiliation and unjustified detention of the accused;
ix. The court to consider reasonable apprehension
of tampering of the witness or apprehension of
threat to the complainant;
x. Frivolity in prosecution should always be
considered and it is only the element of
genuineness that shall have to be considered in the
matter of grant of bail and in the event of there
being some doubt as to the genuineness of the
prosecution, in the normal course of events, the
accused is entitled to an order of bail."
Apex Court in a recent decision in Bhadresh Bipinbhai Sheth v. State of
Gujarat and others (2015 (9) SCALE 403) re-stated and expatiated the
principles in Siddharam Satlingappa Mhetre's case (above).
9. On a reading of Section 438 Cr.P.C., it is evident that special
powers have been conferred only on the High Court and the Court of
Sessions for directing a person to be released on bail previous to his
arrest, which is commonly known as anticipatory bail. The fact is that when
a court grants anticipatory bail what it does is to make an order that in the
event of arrest, the person shall be released on bail. Manifestly, there is no
question of release on bail unless a person is arrested and therefore it is
only on arrest, the order granting anticipatory bail becomes operative.
10. The statement of law that there is no substantial difference
between Sections 438 and 439 Cr.P.C. as regards the appreciation of the
case, as to whether or not a bail is to be granted, is well settled. The
principles that govern Section 439 Cr.P.C. as regards the maintainability of
the application are also attracted to an application under Section 438
Cr.P.C.. However, Sections 438 and 439 Cr.P.C. do not overlap, inasmuch
as they are meant for different purposes. For making an application in
terms of Section 439 Cr.P.C., a person has to be in custody and for
invoking the power under Section 438 Cr.P.C., a person need only
apprehend arrest in a non-bailable offence.
11. Principles of law relating to grant of anticipatory bail have been
clearly laid down by the Supreme Court in Gurbaksh Singh v. The State
of Punjab (AIR 1980 SC 1632). The task undertaken by the Constitution
Bench was to resolve the conflict between personal liberty and the
investigational powers of Police. Supreme Court ruled that the court has
power to impose conditions while granting anticipatory bail. In paragraph
33 of the decision, the Supreme Court observed as follows:
"Therefore the High Court and the Court of
Sessions should be left free to exercise their
jurisdiction under S. 438 by a wise and careful use
of their discretion which, by their long training and
experience, they are ideally suited to do. The ends
of justice will be better served by trusting these
courts to act objectively and in consonance with
principles governing the grant of bail which are
recognised over the years, than by divesting them
of their discretion which the legislature has
conferred upon them, by laying down inflexible
rules of general application."
12. Supreme Court further held that the applicant seeking
anticipatory bail must show that he has "reason to believe" that he may be
arrested for a non-bailable offence. Use of the expression "reason to
believe" shows that the belief that the applicant may be so arrested must
be founded on reasonable grounds. Mere "fear" is not a "belief". Further,
the Supreme Court deprecated the practice of granting blanket orders of
anticipatory bail like "whenever arrested for whichever offence whatsoever".
13. Subsequent to this decision, so many decisions of the Apex
Court by Benches of lesser strength have been pronounced. It is now well
settled that the extraordinary powers of the High Court and the Court of
Sessions to grant pre-arrest bail under Section 438 Cr.P.C. has to be
exercised with a great amount of circumspection, prudence, care and
caution.
14. I shall initially advert to the first question in this case regarding
the legality and propriety of the successive bail applications. I shall firstly
deal with the element of legality.
15. As a general rule, it can be stated that a second application for
anticipatory bail is not barred. Even though the principle of res judicata is
not directly applicable in a criminal case, especially in a bail application,
there is a strong line of thinking that the courts are bound by the doctrine of
judicial discipline. Therefore, the general proposition that a second bail
application for pre-arrest bail is not legally barred is controlled by certain
riders. Primarily, it has to be established by the applicant in the second
application that there is a material change in the fact situation which makes
him entitled to seek the relief. In otherwords, the applicant should establish
a change in the circumstances sufficient to persuade the court to invoke its
extraordinary jurisdiction in favour of him. The change of circumstances
can be in many ways. For example, his earlier application must have been
disposed of by the court considering the submission of the Prosecutor that
he was not involved in any offence at that time or that he was involved only
in bailable offences. Another instance could be that the petitioner might
have been accused of a non-bailable offence of a grave nature and
therefore the court must have felt that his custodial interrogation was
essential for a proper investigation. If the petitioner subsequently shows
that though he is involved in a non-bailable offence, the gravity of the
offence is much lesser than that had been initially alleged against him and
there is no reason for any custodial interrogation, then he may legitimately
claim a relief under Section 438 Cr.P.C. These are some of the instances
the petitioner may rely on to urge that there is a material change in the fact
situation enabling him to seek a pre-arrest bail through a subsequent
application. In the absence of any such plea raised or fact established at
the time of hearing, no doubt, an applicant is legally not entitled to seek
pre-arrest bail by way of a second application.
16. Recently a learned Single Judge of this Court in Muhammed
Ziyad v. State of Kerala & another (2015 (4) KLJ 22) has deprecated the
practice of filing successive bail applications without any legal justification.
17. Full Bench of the Calcutta High Court in Sudip Sen v. State of
W.B. (2010 Cri.L.J. 4628) reiterated the well settled principle that there is
no general bar or impediment in moving a second application for bail,
whether it be pre-arrest bail or regular bail. In paragraph 31 the court
summed up the discussion. The point relevant for our purpose is quoted
hereunder:
"(c) A person will be entitled to move the High
Court or the court of Session, as the case may be,
for the second time. He can do so only on the
ground of substantial change in the facts and
circumstances of the case due to subsequent
events. However, he will not be entitled to move the
second application on the ground that the Court on
earlier occasion failed to consider any particular
aspect or material on record or that any point then
available to him was not agitated before the Court."
(underline supplied)
I am in respectful agreement with the view of the Full Bench.
18. Three Judge Bench of the Supreme Court in Kalyan Chandra
Sarkar v. Rajesh Ranjan (AIR 2005 SC 921) considered the legality and
propriety of successive bail applications. Relevant portion is quoted
hereunder:
"19.The principles of res judicata and such
analogous principles although are not applicable
in a criminal proceeding, still the Courts are
bound by the doctrine of judicial discipline having
regard to the hierarchical system prevailing in our
country. The findings of a higher Court or a co-
ordinate bench must receive serious
consideration at the hands of the Court
entertaining a bail application at a later stage
when the same had been rejected earlier. In such
an event, the courts must give due weight to the
grounds which weighed with the former or higher
court in rejecting the bail application. Ordinarily,
the issues which had been canvassed earlier
would not be permitted to be re-agitated on the
same grounds, as the same it would lead to a
speculation and uncertainty in the administration
of justice and may lead to forum hunting.
20. The decisions given by a superior
forum, undoubtedly, is binding on the subordinate
fora on the same issue even in bail matters
unless of course, there is a material change in the
fact situation calling for a different view being
taken. Therefore, 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.
Therefore, we are not in agreement with the
argument of learned counsel for the accused that
in view the guaranty conferred on a person under
Article 21 of the Constitution of India, it is open to
the aggrieved person to make successive bail
applications even on a ground already rejected by
courts earlier including the Apex Court of the
country."
19. In the light of the principles of law stated in the binding
precedent by the Supreme Court, there cannot be any doubt 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 Court of Sessions under Section 438
Cr.P.C. can only be regarded as an abuse of the process of court.
20. The second point mentioned in the opening paragraph of this
order deserves consideration in this context. The power under Section 438
Cr.P.C. is conferred on the High Court as well as on the Court of Sessions.
It may be true that a person has a right to move either the High Court or the
Court of Sessions for a pre-arrest bail under Section 438 Cr.P.C. at his
option. However, there is a line of judicial pronouncements that where a
person chooses to move the High Court at the first instance under Section
438 Cr.P.C. and his application is rejected, then he is precluded from
moving the Court of Sessions on the same set of facts and circumstances
for the second time. The intent and purport of the reasoning is mentioned
by the Apex Court in Kalyan Chandra Sarkar's decision, viz., the doctrine
of judicial discipline which has to be respected. Hierarchical system of the
judiciary makes it obligatory on the part of the subordinate courts to
consider the decision of the higher courts with due weight when the earlier
application under Section 438 Cr.P.C. filed by the same petitioner was
rejected.
21. Full Bench of the Calcutta High Court in Sudip Sen's case
(supra) also held as follows:
"(b) where a person chooses to straightway
move the High Court in the first instance and his
application is rejected on the same set of facts and
circumstances, he will not be entitled to move the
Court of Session for the second time, but may invoke
the extraordinary powers of the Supreme Court by
seeking special leave to appeal in the Supreme
Court."
The said view is now beyond challenge. Therefore, I hold that once the
High Court dismisses a bail application on merit after considering the
relevant matters, the Court of Sessions cannot entertain a second
application for bail by the same applicant. For the said reasons, I am fully
convinced that this application is an abuse of the process of court and such
practice should be curbed with all vehemence.
22. The decision of the Supreme Court in Shahzad Hasan Khan
v. Ishtiaq Hassan Khan (AIR 1987 SC 1613) is to the effect that it would
be appropriate and desirable that the subsequent bail applications should
be placed before the same Judge who had passed the earlier order. It is
based on certain principles. According to the Apex Court, it prevents abuse
of the process of court inasmuch as an impression is not created that the
litigant is shunning or selecting a court depending on whether the court is
to his liking or not. In the same decision, the Supreme Court frowned on
the practice of filing successive applications for bail without any new factor
having cropped up. That decision was rendered in the peculiar facts and
circumstances in that case. There may be practical difficulties in rigidly
insisting that all the subsequent bail applications should be placed before
the same Judge, who had dealt with the earlier bail application. There may
be instances where the Judge might have retired or been transferred to
another court. Other unforeseeable difficulties also may be there. However,
if there is no such impediment, the principles stated by the Apex Court in
Shahzad Hasan Khan's case will be a way out to avoid a forum shopping.
23. I shall now examine the propriety of the practice adopted in
this case in the wake of rampant filing of such successive bail applications
without any legal justification. Change of circumstance or change in the fact
situation does not imply a change in the roaster or a change in the persona
of the Judge or a change of the advocate filing the bail application.
Learned members of the legal profession has a prominent role in checking
this obnoxious practise by certain unscrupulous litigants. Justice
V.R.Krishna Iyer speaking for a four Judge Bench in Bar Council of
Maharashtra v. M.V.Dabholkar (AIR 1976 SC 242) stated thus:
"The central function of the legal profession is
to promote the administration of justice. If the
practice of law is thus a public utility of great
implications and a monopoly is statutorily granted
by the nation, it obligates the lawyer to observe
scrupulously those norms which make him worthy
of the confidence of the community in him as a
vehicle of justice-social justice. .........."
Provisions in the Advocates Act, 1961 and the rules made by the Bar
Council of India on Standard of Professional Conduct and Etiquette clearly
show the responsibility of the lawyer community in maintaining the dignity
and might of the institutions administering justice. High moral tone and
adherence to the canons of ethics are naturally expected from lawyers for
the healthy upkeep of the system. It is therefore incumbent on the gentle
and erudite members of the noble profession to prevent such practices of
unscrupulous, unprincipled, exploitative and cunning litigants.
24. Every party seeking justice has a legal and moral responsibility
to place the entire facts before the court. Placement of the entire facts is
highly essential for a proper and correct decision of the litigation. Non-
production of orders passed in the earlier bail application/applications can
only be viewed as suppression of material facts disentitling a discretionary
relief. Non-mentioning of any change in the circumstances warranting a re-
look in the matter can only result in rejection of the plea. These are certain
basic aspects to be reckoned with.
25. To sum up, I hold that the plea raised by the applicant is
nothing but an abuse of the process of court. I shall stop by saying that
this Court is not powerless to curb such nefarious and detestable practices
of the unscrupulous litigants by imposing exemplary costs/penalty and also
by passing such other orders to keep up the might, dignity and honour of
the Court. However, I refrain from doing so in this case.
In the result, the application is dismissed.
A. HARIPRASAD, JUDGE.
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