Suresh S. Menon vs State Of Kerala And Ors

This is an application filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') for quashing Annexure-A12 order passed by the Court of Session, Alappuzha by which it granted the privilege of pre-arrest bail to the second respondent.

The petitioner is the de facto complainant in the case. The second respondent is the first accused in the case registered as Crime No.1351/2020 of the Cherthala Police Station under Sections 143, 147, 148, 341, 323, 324 and 308 read with 149 of the Indian Penal Code.

The prosecution case is as follows: There was dispute between the de facto complainant and the first accused regarding the use of a way. The de facto complainant had instituted a suit against the wife of the first accused in relation to that dispute. On 30.06.2020, at about 16.45 hours, accused 1 to 6 tried to construct a fence on the disputed way. When the de facto complainant made attempt to restrain them, the first accused made a command to the other accused to beat and kill him. Then the other accused hit the de facto complainant with their hands and kicked him. Accused No.6 cut the de facto complainant with a sickle, aiming the blow on the head but the de facto complainant evaded the blow and it fell on the side of his head, causing injury there.

The second respondent, who is the first accused, is a lawyer. He filed an application before the Court of Session, Alappuzha under Section 438 of the Code for granting anticipatory bail. As per Annexure-A10 order dated 16.07.2020, the learned Sessions Judge dismissed that application.

The second respondent later filed another application for anticipatory bail before the Court of Session. As per Annexure-A12 order dated 23.11.2020, the learned Sessions Judge allowed that application and directed the second respondent to surrender before the investigating officer on or before the date 03.12.2020 and it was also directed that, in the event of arrest of the second respondent on such surrender, he shall be released on bail on certain conditions.

The de facto complainant has filed this application under Section 482 of the Code for quashing Annexure-A12 order.

Heard the learned counsel for the petitioner and the learned Senior Public Prosecutor and also the learned senior counsel who appeared for the second respondent. I have also perused the statement filed by the investigating officer.

Learned senior counsel for the second respondent contended that, the petitioner, who is the de facto complainant, has no locus standi to challenge the order granting anticipatory bail to the accused. This contention is misconceived.

The complainant can always question the order granting bail. An order granting bail can be tested on merits. The complainant can question the merits of the order granting bail (See Brij Nandan Jaiswal v. Munna : AIR 2009 SC 1021).

Annexure-A10 order passed by the Court of Session, by which it dismissed the first application for anticipatory bail filed by the second respondent, shall be hereinafter referred to as the first order. Annexure-A12 order passed by the Court of Session, by which it allowed the second application for anticipatory bail filed by the second respondent, shall be hereinafter referred to as the second order.

Learned counsel for the petitioner has mainly raised two contentions in challenging the second order. They are: (1) The second order was passed by the Court of Session in the absence of any real change of circumstance with regard to the fact situation of the case. (2) The court did not hear the petitioner, who is the de facto complainant in the case, before granting anticipatory bail to the second respondent.

The law with regard to filing of successive applications for bail is well settled. An accused has right to make successive applications for grant of bail. 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 may 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).

Even though there is room for filing a subsequent bail application in a case where the earlier application has been rejected, the same can be done only 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 (See Kalyan Chandra Sarkar v. Pappu Yadav: AIR 2005 SC 921).

The aforesaid principles have been highlighted by this Court in Vineeth v. State of Kerala (2015 (5) KHC 224), Pandi v. State of Kerala (2018 (4) KHC 782: 2018 (4) KLT 249) and Abdul Aleem v. State of Kerala (2021 (1) KHC 493: 2021 (1) KLT 741).

Learned counsel for the petitioner contended that the Court of Session should not have entertained the second application for anticipatory bail filed by the second respondent. Learned counsel would rely upon the decision of the Supreme Court in G.R.Ananda Babu v. State of Tamil Nadu (2021 SCC OnLine SC 176) in support of this contention. 16. In G.R.Ananda Babu (supra), the Apex Court has held as follows:

"The specious reason of change in circumstances cannot be invoked for successive anticipatory bail applications, once it is rejected by a speaking order and that too by the same Judge".

What the Apex Court has held in the above decision is only that specious reason of change in circumstances cannot be invoked for successive anticipatory bail applications. It only means that successive applications for anticipatory bail cannot be entertained on the ground of change of circumstance which is not real and genuine and which has only a false look of truth. In other words, the change in circumstance to entertain a second application for anticipatory bail shall be real and genuine.

Further, the observations of the Apex Court in G.R.Ananda Babu (supra) were made in the context of the order passed by the High Court granting anticipatory bail to an accused who was absconding and whose custodial interrogation was essential.

The questions now which essentially fall for consideration by this Court are whether there was real change in the fact situation of the case justifying the grant of pre-arrest bail to the second respondent by the Court of Session and whether it is really necessary to interfere with that order to secure the ends of justice.

While passing the first order, learned Sessions Judge found that accused 2 to 5 were persons having criminal antecedents and who were hailing from Ernakulam and Thrissur districts and that they were arranged by the first accused to block the way. Learned Sessions Judge also found that the first accused was the master mind behind the crime and custodial interrogation of him was necessary for an effective investigation of the case.

However, while passing the second order, learned Sessions Judge accepted certain facts as change in circumstances which would justify granting pre-arrest bail to the first accused. They are : (1) The civil court dismissed the application for temporary injunction filed by the de facto complainant to restrain the wife of the first accused from using the disputed way and allowed the application for interim mandatory injunction filed by the wife of the first accused for restoring her property to its original position. The aforesaid order of interim mandatory injuction attained finality and it was got executed. It indicated that the disputed way was a newly created way by the de facto complainant just before the institution of the suit by him. The incident that took place which led to the registration of the crime was the result of the natural resistance offered by the first accused to the illegality committed by the de facto complainant. (2) The first accused is aged 65 years and he is a person suffering from acute diabetes. (3) The injury sustained by the de facto complainant is not serious. (4) In the light of the guidelines issued by the Supreme Court and this Court in view of the Covid-19 situation in the jails, it was necessary to avoid the detention of the first accused in jail.

The circumstances 2 to 4 mentioned above were in existence even at the time of passing of the first order by the Court of Session. They were not circumstances which came into existence after the dismissal of the first application for anticipatory bail filed by the first accused.

The findings made by the civil court regarding the disputed way in the order granting interim mandatory injunction in favour of the wife of the first accused cannot be considered to have made any real change in the fact situation with regard to the prosecution case. Assuming that the disputed way was a newly created one by the de facto complainant, the first accused, a lawyer, should not have taken the law into his own hands to undo that illegality. No question of private defence of property also arose because the incident alleged by the prosecution occurred not at the time when the de facto complainant allegedly created the way.

The second order passed by the Court of Session is silent with regard to the need for custodial interrogation of the first accused which was found necessary when it passed the first order. There is ample difference between custodial interrogation and interrogation by the police of a person who is insulated with an order of pre-arrest bail. Custodial interrogation is qualitatively more elicitation orientated than questioning an accused who is armed with an anticipatory bail order (See State v. Anil Sharma : AIR 1997 SC 3806).

There is also merit in the contention of the petitioner that he should have been heard before granting anticipatory bail to the second respondent. Of course, he had no absolute right to be heard in an application for anticipatory bail filed by the accused. But, the earlier order, rejecting the first application for bail, was passed by the Court of Session after hearing the petitioner. In such circumstance, it was only proper for the court to grant opportunity of hearing to the petitioner at the time of considering the second application.

Inspite of the above infirmities in the second order passed by the Court of Session, in view of the submissions made by the learned Public Prosecutor before this Court, I am not inclined to interfere with that order by invoking the power of this Court under Section 482 of the Code. Learned Public Prosecutor submitted that, pursuant to the second order, the second respondent surrendered before the investigating officer on 30.11.2020 and then he was interrogated by the police and he was arrested and released on bail. Learned Public Prosecutor submitted that the second respondent had co-operated with the investigation and that custodial interrogation of him is not necessary. In view of these submissions made by the learned Public Prosecutor, quashing the impugned order is not necessary to secure the ends of justice.

At this juncture, I also take note of the following facts. The second respondent is a lawyer aged 65 years. The prosecution has no apprehension that he would flee from the process of law. Though an offence punishable under Section 308 of the I.P.C is alleged against the accused in the case, the only injury sustained by the de facto complainant in the incident was a lacerated wound of the size 4x1x1 cm near the vertex. The second respondent was not armed with any weapon. He was not the person who actually inflicted that injury on the petitioner. The only overt act allegedly committed by him was the command made by him to the other accused to beat and kill the petitioner. No offence of criminal conspiracy is alleged against the second respondent.

In view of the above facts, I find that it is not expedient to interfere with Annexure-A12 order at this point of time. The prayer for quashing Annexure-A12 order is liable to be rejected and the petition is liable to be dismissed.

Consequently, the petition is dismissed.