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. 5517 of 2018 CRIME NO. 436/2018 OF AIROOR POLICE STATION , Thiruvananthapuram PETITIONER/ACCUSED NO.2: SUGANTHI, AGED 55 YEARS, D/O NANI, RESIDING AT KATTUVILA, PALAYAMKUNNU P.O VARKALA, THIRUVANANTHAPURAM DISTRICT. BY ADVS. SRI.P.N.SUKUMARAN SRI.AKHIL S.VISHNU RESPONDENTS/COMPLAINANT: 1 STAE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM - 682 031. 2 SUB INSPECTOR OF POLICE, AYIRUR POLICE STATION, THIRUVANANTHAPURAM DIST.695 001. PUBLIC PROSECUTOR [ENTITY] THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 27.09.2018, THE COURT ON 01.10.2018 PASSED THE FOLLOWING: [CASE NUMBER] 2 ORDER
This is the second application for anticipatory bail filed by the petitioner under [SECTION] [ACT]
2. The petitioner is the second accused in the case registered as [CASE NUMBER] of Ayirur Police Station under [SECTION], [SECTION], [SECTION] and [SECTION] [ACT]
3. The prosecution case is that on 02.04.2018, at about 17.00 hours, the accused together attacked the de facto complainant with deadly weapons and caused grievous hurt to her. It is alleged that the first accused hit on the face of the de facto complainant with his hand and that the second accused beat her with a wooden reaper causing fracture to the bone of her left hand. It is also alleged that the other accused beat her with wooden reapers and hit her.
4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the case diary.
5. Along with the other accused in the case, the petitioner had earlier filed an application for anticipatory bail as [CASE NUMBER]. The aforesaid application was dismissed by this Court by order dated 13.06.2018. This second application for anticipatory bail is filed by her on 09.08.2018.
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 [PRECEDENT]).
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 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. In the earlier order dismissing the application for anticipatory bail filed by the petitioner, this Court had stated as follows:
"There is a specific allegation against the second petitioner, the second accused in the case, that she beat the de facto complainant with a wooden reaper causing fracture to the bone of the left hand. The report of the Investigating Officer shows that the weapon allegedly used by the second petitioner has not been recovered. It is true that the second petitioner is a lady. But the fact remains that the de facto complainant is also a lady of sixty years. Considering the nature and gravity of the offence allegedly committed by the second petitioner, I am not inclined to grant her the benefit of pre-arrest bail."
11. There is no change in the fact situation of the case. Though the petitioner has alleged that the weapon allegedly used by her has been recovered by the police, the report of the Investigating Officer shows that no such recovery has been effected.
12. Moreover, this Court had stated in the earlier order that considering the nature and gravity of the offence allegedly committed by the petitioner, the discretion of the Court cannot be exercised in her favour to grant her the benefit of pre-arrest bail. There is no change in this fact situation.
13. There is no change in the circumstances of the case since the date of dismissal of the earlier application for anticipatory bail. The petitioner cannot seek a review of the earlier order under the guise of a second application for anticipatory bail. The application is liable to be dismissed.
In the result, the application is dismissed.
(sd/-) [ENTITY], JUDGE jsr/29/9/18 True Copy PS TO JUDGE