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2013 DIGILAW 1043 (KER)

Aneesh v. State of Kerala

2013-11-27

THOMAS P.JOSEPH

body2013
JUDGMENT : K. T. Sankaran, J. A learned single Judge of this Court formulated the following question of law and referred the matter to a Division Bench. Is it correct to say that once an application for pre-arrest bail under Section 438(1) of the Code of Criminal Procedure is dismissed as withdrawn, a subsequent application on the same set of facts and for the same relief is not maintainable for the said reason?. 2. In the Reference Order, the learned single Judge referred to two decisions of another learned single Judge [Varada Nadarajan v. State of Kerala (2013 (4) KHC 22) and Jamsheer A.V. and another v. State of Kerala (ILR 2013 (3) Kerala 790)] and expressed the view that those decisions require re-consideration. In the present case, the petitioner filed an application for anticipatory bail under Section 438 of the Code of Criminal Procedure before the High Court and the said Bail Application was sought to be withdrawn. Accordingly, that Bail Application was dismissed as withdrawn on 12.7.2013. Thereafter, the petitioner filed the present Bail Application on 30.7.2013 under Section 438 of Cri. P.C. A copy of the order dated 12th July, 2013 was produced as Annexure A along with the second Bail Application. 3. In Jamsheer. A. V. and another v. State of Kerala (ILR 2013 (3) Kerala 790), the petitioner therein moved an application under Section 438 of Cri. P.C. and that application was withdrawn. Later, he filed another Bail Application under Section 438 of Cri. P.C. It was opposed on the ground that dismissal of the earlier Bail Application would be a bar to the maintainability of the second application. It was contended by the petitioner therein that he withdrew the earlier application since the proceedings against him were dropped by the police at that time. This contention was found to be untrue by the learned single Judge while disposing of the second Bail Application. It was held thus : 12. After looking into the Case Diary produced also, I do not find any merit in the case canvassed by the petitioners for filing the present application after withdrawal of a previous application moved by them with the third accused. Previous application filed with third accused was withdrawn since the police removed that accused from the crime is the reason stated to file the present petition. Previous application filed with third accused was withdrawn since the police removed that accused from the crime is the reason stated to file the present petition. That case canvassed is shown to be factually incorrect and third accused continues to be an accused in the crime. Further- more, the reason so canvassed for prosecuting an application for anticipatory bail afresh, which is a discretionary relief, after dismissal of previous petition as withdrawn, is totally meritless. No party has the right to move successive applications for the discretionary relief under Section 438 of the Code before the same court after dismissal of a previous application, whether it be on merits or on dismissal as withdrawn. 4. In Varada Nadarajan v. State of Kerala (2013 (4) KHC 22), the petitioner filed an application under Section 438 of Crl. P.C. after dismissal of her earlier application as withdrawn. In that context, it was held in Varada Nadarajan v. State of Kerala (2013 (4) KHC 22) thus : 10. Withdrawal of previous applications of petitioner and dismissal of such applications as withdrawn by orders of this Court would only mean that the petitions were not pressed. That would only indicate that petitioner who applied for the discretionary relief was not interested in prosecuting her claim for such relief and, consequently, her petitions were dismissed as withdrawn. Dismissal of previous petitions as withdrawn cannot be canvassed as a ground for filing a fresh application on the premise that there was no decision on merits of her case. Entertaining a subsequent application on the above ground in effect may give rise to the evil of forum hunting which cannot at all be allowed. Furthermore, the grant or rejection of anticipatory bail depends on the exercise of judicial discretion by the Court having regard to the totality of the facts and circumstances presented in the case. A person after invoking the statutory right to seek such relief and then giving it up by withdrawal, is deemed to have abandoned his right for such discretionary relief. His right to seek regular bail as provided by the Code remains intact despite rejection of his claim for anticipatory bail. That also has to be considered and taken note in examining his entitlement to move afresh for the discretionary relief of anticipatory bail after dismissal of his previous application for such relief whether it was withdrawn or on merits. His right to seek regular bail as provided by the Code remains intact despite rejection of his claim for anticipatory bail. That also has to be considered and taken note in examining his entitlement to move afresh for the discretionary relief of anticipatory bail after dismissal of his previous application for such relief whether it was withdrawn or on merits. No party can claim as of right to move a fresh application for anticipatory bail after dismissal of his previous application for such discretionary relief. However, in an exceptional case a successive application can be entertained where party is able to show that non-consideration of his application would result in failure or miscarriage of justice. If a previous application was disposed recording the submission of prosecutor that no crime was registered against petitioner, but, later if the applicant is proceeded as an accused for a non-bailable offence entertaining and considering of his second application may be called for. That of course is a case of exceptional nature which demand consideration of the subsequent application on the change of fact situation. 5. The learned single Judge in the present case doubted the correctness of the decisions in Varada Nadarajan v. State of Kerala (2013 (4) KHC 22) and Jamsheer. A. V. and another v. State of Kerala (ILR 2013 (3) Kerala 790). In the Reference Order, a discussion was seen made to the Procedure in the Code of Civil Procedure with respect to the dismissal of a suit for default and the bar under Rule 9 of Order IX of the Code of Civil Procedure. Reference was also made to Order XXIII of the Code of Civil Procedure with respect to the abandonment of suit or withdrawal of the suit without leave of the court to file a fresh suit. In the Reference Order, the learned single Judge expressed the view that in the absence of any provision in the Code of Criminal Procedure regulating or barring of the filing of a second application for anticipatory bail under Section 438 of the Code of Criminal Procedure, a second application after withdrawal of the first application would be maintainable. In the Reference Order, the learned single Judge expressed the view that in the absence of any provision in the Code of Criminal Procedure regulating or barring of the filing of a second application for anticipatory bail under Section 438 of the Code of Criminal Procedure, a second application after withdrawal of the first application would be maintainable. It was also noticed in the Reference Order that if the Court is of the opinion that withdrawal of the earlier application was to cause delay or to destroy or tamper with the evidence, the Court could certainly reject the second application on that ground. 6. Section 438 of the Code of Criminal Procedure entitles a person to apply to the High Court or Court of Session for pre-arrest bail, where he has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence. 7. In Gurbaksh Singh Sibbia v. State of Punjab ( 1980 (2) SCC 565 ) : ( AIR 1980 SC 1632 ), the Constitution Bench of the Supreme Court considered the scope and ambit of Section 438 of Cri. P.C. and it was held thus : 26. .........................Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions............... 8. In Baiji. C. Varghese v. State of Kerala (2009 (1) KLT 44), the application filed by the petitioner under Section 438 of Cri. P.C. was disposed of accepting the prayer made by her that she may be permitted to withdraw the petition without any fetter on her right to surrender before the learned Magistrate and seek regular bail. Accordingly, the Bail Application was dismissed as withdrawn. The petitioner did not surrender before Court and seek regular bail under Section 437 of Cri. P.C. On the other hand, a subsequent application was filed by her under Section 438 of Cri. P.C. Dealing with that application, a learned single Judge of this Court held thus : 11. Accordingly, the Bail Application was dismissed as withdrawn. The petitioner did not surrender before Court and seek regular bail under Section 437 of Cri. P.C. On the other hand, a subsequent application was filed by her under Section 438 of Cri. P.C. Dealing with that application, a learned single Judge of this Court held thus : 11. If an application for anticipatory bail is allowed to be dismissed as withdrawn on the mere request, or dismissed for default, the accused may wait for another opportunity to file a similar petition and abscond, without surrendering to law. He may repeatedly file petitions only with a view to prevent investigating officer from arresting him and interrogating him. He may destroy evidence or tamper with it, if he is not arrested without delay. The trial may be protracted for want of accused's presence. He may flee from law and cause deliberate delay in disposal of the case, without surrendering. It is also likely that he may seek forum-hunting. These shall not be encouraged. 15. When a person subjects himself to the jurisdiction of court by filing a petition under Section 438 of the Code and when a request is made to withdraw the petition, the court shall therefore ascertain the purpose for which petitioner seeks to withdraw the petition. If the court is not satisfied of the reason stated for withdrawal and if it appears to court that petitioner may abscond or destroy or tamper with evidence by delaying or evading arrest, it shall dispose of the application only on merit. The court shall not ordinarily, as a routine, permit an anticipatory bail application to be dismissed as withdrawn or for default, unless there are strong reasons to do so. 9. In Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and another (AIR 2005 Supreme Court 921), while dealing with the case where nine applications for bail were filed under Section 437 of Cri. P.C. successively, the Supreme Court held as follows : '18. It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. P.C. successively, the Supreme Court held as follows : '18. It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. But even persons accused of non bailable offences are entitled for bail if the Court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the Court is satisfied for reasons to be recorded that in spite of the existence of prima facie case there is a need to release such persons on bail where fact situations require it to do so. In that process a person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In such cases if the circumstances then prevailing requires that such persons to be released on bail, in spite of his earlier applications being rejected, the Courts can do so. 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 convassed 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. 10. Ordinarily, the issues which had been convassed 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. 10. The power conferred under Section 438 of the Code of Criminal Procedure is of an extraordinary character. It is well settled that the power to grant anticipatory bail should be exercised with due care and circumspection. It is also well settled that the object of Section 438 of the Code of Criminal Procedure is that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. However, Section 438 of the Code of Criminal Procedure cannot be invoked to exempt the accused from surrendering to the court after the investigation is completed and charge-sheet is filed against him. No unnecessary and unreasonable restriction can be placed on the right of the party to make an application under Section 438 of the Code of Criminal Procedure. But the court will grant relief by exercising its discretion only in exceptional cases and not as a matter of course. The remedy under Section 438 is not intended to insulate the accused from all or any of the consequences of the investigation. It is intended to protect the liberty of persons who are falsely implicated in cases. The court may also grant an order under Section 438 of the Code of Criminal Procedure in cases where even if the case put forward by the prosecution is taken as true, the gravity of the same would not be sufficient to arrest and detain the accused. No straitjacket formula can be evolved as to the case in which the court may grant or may not grant anticipatory bail under Section 438 of the Code of Criminal Procedure. The discretion to be exercised by the court under Section 438 of Cr. P.C. depends on the facts and circumstances of each case. The nature of the offence, the nature of evidence available in the case, the severity of the punishment etc. are relevant factors while dealing with an application under Section 438 Cr. P.C. When the High Court or the Court of Sessions makes a direction under sub-section (1) of Section 438 Cr. The nature of the offence, the nature of evidence available in the case, the severity of the punishment etc. are relevant factors while dealing with an application under Section 438 Cr. P.C. When the High Court or the Court of Sessions makes a direction under sub-section (1) of Section 438 Cr. P.C., it may include such conditions, including those enumerated under sub-section (2) of Section 438 Cr. P.C. in the light of the facts of the particular case. 11. The petitioner in a petition under Section 438 of Cr. P.C. is entitled to withdraw his application. At the same time, he is not entitled to file successive applications. Sometimes, it may turn out that the application under Section 438 is premature in the sense that no allegations were made against the petitioner or no FIR was registered against him. In such a case, the application under Section 438 of Cr. P.C. can be withdrawn by the petitioner without forfeiting his right to move later under Section 438 of Cr. P.C. after the crime is registered or when an accusation is made against him. When a person applies under Section 438 of Cr. P.C. on a reasonable belief that he may be arrested on an accusation of having committed non-bailable offence, later it may turn out that at that stage there was no likelihood of such person being arrested. In such a circumstance, such person may withdraw the application under Section 438 of Cr. P.C and prefer an application later, if it becomes necessary. A rigid rule that under no circumstance, a second application under Section 438 can be filed, would not be desirable in the scheme of Section 438 of Cr. P.C. In an application under Section 438 of Cr. P.C., it is likely that a submission may be made that it may not be necessary to arrest the person concerned at that stage. Later, the investigating officer may take the view that it is necessary to arrest the person concerned. In such a case, nothing prevents the person concerned from applying before court under Section 438 of Cr. P.C. for the second time. That an accused would have a right to apply under Section 438 of Cr. P.C. does not have any impact on the discretion to be exercised by the court in granting or refusing the relief. In such a case, nothing prevents the person concerned from applying before court under Section 438 of Cr. P.C. for the second time. That an accused would have a right to apply under Section 438 of Cr. P.C. does not have any impact on the discretion to be exercised by the court in granting or refusing the relief. 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 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. We are of the view that the statement of law in paragraph 12 of Jamsheer’s case (Jamsheer. A.V. and another v. State of Kerala and others (ILR 2013(3) Kerala 790)) was made in wide terms, taking into account the facts in that case and on the finding that the contentions put forward were incorrect. We are of the view that dismissal of an application as withdrawn would not be an absolute bar in making an application for anticipatory bail at a subsequent stage, particularly when there is change of circumstances. We are not in full agreement with the finding in paragraph 11 of the judgment in Varada Nadarajan’s case (Varada Nadarajan v. State of Kerala (2013(4) KHC 22)) that when an application for anticipatory bail was dismissed as withdrawn, no second application can be entertained on the same set of circumstances mentioned in the earlier application. We are of the view that depending on the facts and circumstances of each case, a second application for anticipatory bail would also be maintainable even if the former application was dismissed as withdrawn. 12. In civil litigation, the dispute generally is between the two parties. The civil disputes may be with respect to the right to property or certain other rights. 12. In civil litigation, the dispute generally is between the two parties. The civil disputes may be with respect to the right to property or certain other rights. Dismissal of a suit as withdrawn or as abandoned is quite different and distinct from dismissal of an application for anticipatory bail under Section 438 of Cr.P.C. In an application for anticipatory bail, the rights of parties would not be adjudicated. The principles which govern civil litigation in the matter of withdrawal or abandonment of suit and the provisions of Order XXIII C.P.C. cannot be as such imported into the Code of Criminal Procedure. 13. As held in Baiji.C. Varghese v. State of Kerala (2009(1) KLT 44), the accused who files an application under Section 438 of Cr.P.C. cannot be allowed to protract the investigation of the case and prevent the investigating officer from arresting the accused by filing successive applications under Section 438 of Cr.P.C. In other words, an application under Section 438 of Cr.P.C. cannot be allowed to be used as a tool for delaying the process of investigation of the case or for gaining time in the matter of arrest. To effectively prevent such dilatory tactics being adopted, we are of the view that a court dealing with an application under Section 438 of Cr.P.C. has to state the reasons why the applicant wanted to withdraw the Bail Application. If the applicant seeks permission of the court to file another application later in point of time, such request could well be considered. If reasons are stated while disposing of the Bail Application, even when a request is made to withdraw the same, it would enable the court to deal with the second application effectively and the court would be able to assess the situation and find out whether the second application is filed to delay the process of investigation. 14. For the aforesaid reasons, we answer the Reference as follows : (i) It cannot be said as an infallible and absolute rule that when an application for anticipatory bail is dismissed as withdrawn, the applicant cannot file a second application on the same set of facts. 14. For the aforesaid reasons, we answer the Reference as follows : (i) It cannot be said as an infallible and absolute rule that when an application for anticipatory bail is dismissed as withdrawn, the applicant cannot file a second application on the same set of facts. (ii) When a second application for anticipatory bail is made after withdrawing the first application, the court would consider the question whether the applicant was justified in withdrawing the earlier application or whether he was only gaining time or was indulging in forum shopping. The court has every discretion to deal with the application and consider whether the relief should be granted or not in the facts and circumstances of the case. (iii) When a request for withdrawal of the application for anticipatory bail is made, it would be ideal for the court to record as to why the applicant wanted to withdraw the application. If such reasons are stated, it would enable the court to deal with the second application for anticipatory bail filed at a later stage. We hold that the statement of law in paragraph 12 of the judgment in Jamsheer A.V. and another v. State of Kerala and others (ILR 2013(3) Kerala 790) is a wide statement and it was made on the basis of the finding that the reason stated for withdrawal of the earlier application for anticipatory bail was false. (iv) We are not in full agreement with the view expressed in paragraph 11 of the judgment in Varada Nadarajan v. State of Kerala (2013(4) KHC 22) that after withdrawal of an application for anticipatory bail, no second application can be maintained unless there is change of circumstances. We hold that in exceptional circumstances even in the absence of change of circumstances, a second application for anticipatory bail would be maintainable after withdrawal of earlier application, provided the court is satisfied that the attempt of the accused is not to delay the investigation of the case or to gain time in the matter of arrest or for some other undesirable gains. 15. In the present case, we are inclined to accept the submissions made by the learned counsel for the petitioner with regard to the circumstances in which the earlier Bail Application was withdrawn. Therefore, we are inclined to consider the application on the merits. 15. In the present case, we are inclined to accept the submissions made by the learned counsel for the petitioner with regard to the circumstances in which the earlier Bail Application was withdrawn. Therefore, we are inclined to consider the application on the merits. The offences alleged against the petitioner are under Sections 143, 147, 149, 308 and 427 IPC. 16. We heard the learned Public Prosecutor as well. The date of occurrence was on 24.1.2013. In the facts and circumstances, we are of the view that custodial interrogation of the petitioner is not required. There is no case for the prosecution that the petitioner was absconding during the relevant period. While passing the reference order on 1.11.2013, the learned single Judge granted an interim order that in the event of the arrest of the petitioner, he shall be released until further orders on his executing a bond for `25,000/- (Rupees Twenty five thousand only) with two solvent sureties for the like sum before the arresting officer and also subject to certain other conditions. It is submitted that the petitioner was not arrested thereafter and therefore, it was not necessary for him to comply with the conditions. We are inclined to allow the Bail Application. In the event of arrest of the petitioner in Crime No.182 of 2013 of Thiruvalla Police Station, he shall be released on bail on his executing a bond for `25,000/- (Rupees Twenty five thousand only) with two solvent sureties for the like amount to the satisfaction of the arresting officer and subject to the following conditions : (a) The petitioner shall report to the officer investigating the case on every Saturday between 10 a.m. and 12 p.m. until further orders or till the date of filing of the final report. (b) The petitioner shall report to the officer investigating the case as and when required for interrogation. (c) The petitioner shall co-operate with the investigation of the case. Petition allowed.