Kerala High Court
Sooraj U.M vs State Of Kerala on 1 October, 2018
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. 4384 of 2018
CRIME NO. 589/2018 OF Munambm Police Station, Ernakulam
PETITIONER/ACCUSED:
SOORAJ U.M
AGED 30 YEARS, S/O. MURALEEDHARAN U.V., ULIKKARA
HOUSE, PALLIPPURAM P.O., ERNAKULAM DISTRICT, PIN -
683 515.
BY ADVS.
SRI.C.S.MANU
SRI.P.N.SASIDHARAN
RESPONDENTS/COMPLAINANT & INVESTIGATING OFFICER:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF
KERALA, ERNAKULAM DISTRICT, PIN - 682 031.
2 STATION HOUSE OFFICER
MUNAMBAM POLICE STATION, ERNAKULAM DISTRICT, PIN -
683 515.
PP SMT K K SHEEBA
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON
27.09.2018, THE COURT ON 01.10.2018 PASSED THE FOLLOWING:
B.A.No.4384/2018
2
ORDER
This is the second application for anticipatory bail filed by the petitioner under Section 438 Cr.P.C.
2. The petitioner is the accused in the case registered as Crime No.589 of 2018 of the Munambam Police Station under Section 376 I.P.C.
3. The prosecution case is as follows: The victim lady was working as the Manager in the 'Natural Beach Resort' at Cherai. The petitioner is the son of the person who was conducting a restaurant near the resort. He used to visit the resort very often. On 12.1.2018, at about 23.30 hours, while the victim lady was sitting in the visitor's room in the resort, the petitioner approached her and gave her ice cream which was mixed with some drug and then she became unconscious and at that time he committed rape on her.
4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the case diary.
5. The petitioner had earlier filed an application for anticipatory bail as B.A.No.3397/2018. The aforesaid application was dismissed by this Court on 30.05.2018. This second application is filed by him on 26.06.2018. B.A.No.4384/2018 3
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. 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 B.A.No.4384/2018 4 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).
B.A.No.4384/20185
10. While dismissing the earlier application for anticipatory bail filed by the petitioner this Court had stated as follows:
"In the first information statement given to the police by the victim lady, she has given the details of the incident. In the statement given by her to the Magistrate under Section 164 Cr.P.C also she has narrated the entire incident in detail. These statements given by the victim lady, prima facie, indicate the complicity of the petitioner in the case. These statements reveal that the petitioner had committed rape on the victim lady after making her unconscious by giving her some sedative substance mixed with ice cream. The medical examination report of the victim and the statement of the doctor concerned reveal that the victim had been subjected to sexual assault."
11. There is no change in the fact situation mentioned above. The plea of the petitioner in this application is that the investigation conducted by the police has revealed that the de facto complainant had received calls in her mobile phone on 12.01.2018 and 13.01.2018, especially before and after the time 11.30 p.m on 12.01.2018 and it would falsify the prosecution case that she was under sedation at that time and it would prove the innocence of the accused in the case. The B.A.No.4384/2018 6 petitioner has not explained how he had got access to the call data records of the mobile phone used by the de facto complainant. If he had no access to such call data records, then it is not explained from what source, he could obtain the details mentioned in the sixth paragraph of this application for bail. The case diary does not contain any such call data records. Learned counsel for the petitioner would pray that the court may direct the police to conduct an enquiry as stated in the tenth paragraph of the application. At the hearing of the application for anticipatory bail, the Court cannot direct the Investigating Officer to conduct a roving enquiry into the allegations and pleas raised by the accused and collect information for him.
12. The plea of the petitioner that there was delay in giving information regarding the incident to the police had already been considered by this Court in the earlier order and the finding made by this Court does not require any re- consideration.
13. While dismissing the earlier application for anticipatory bail filed by the petitioner this Court had stated as follows:
B.A.No.4384/20187
"Considering the nature and gravity of the offence alleged against the petitioner, the discretion of the court cannot be exercised in his favour to grant him the benefit of pre-arrest bail. The statement of the victim lady reveals that even before the registration of the case against the petitioner, she had been intimidated and threatened by the petitioner and some other persons. Therefore, it is likely that, if bail is granted to him, the victim lady and other witnesses in the case would be intimidated or influenced thereby hampering the investigation. In these circumstances, the benefit of pre-arrest bail cannot be granted to the petitioner. The petition is liable to be dismissed.
14. There is no change in the fact situation as mentioned above. There is no change in the circumstances of the case. A review of the earlier order dismissing the application for anticipatory bail cannot be sought under the guise of a second application in that regard.
In the aforesaid circumstances, the application is dismissed.
(SD/-) R.NARAYANA PISHARADI, JUDGE jsr/29/9/18 True Copy PS TO JUDGE