Tuesday, 22 March 2016

Whether successive anticipatory bail application is maintainable without establishing change of circumstances?

 
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.
IN THE HIGH COURT OF KERALAAT ERNAKULAM

                                                        PRESENT:

                            THE HONOURABLE 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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