If Anticipatory Bail Is Denied By High Court, Successive Application Should Also Be Filed Before HC, Not Sessions Court: Kerala High Court

The Kerala High Court recently observed that if the High Court denies anticipatory bail to a person, the successive applications citing change in circumstances should also be filed before the High Court and not before the Sessions Court.

Justice A. Badharudeen deprecated the practice of filing of subsequent anticipatory bail applications before the Sessions Court, after dismissal of the anticipatory bail plea by the High Court, by suppressing such adverse order. The Court opined that the said practice could not be justified. 

"Therefore, in order to keep judicial discipline in tact, in cases where the High Court rejected anticipatory bail plea, second or successive anticipatory bail applications, pointing out change in circumstances, have to be filed before the High Court and not before the Sessions Court," it held. 

The prosecution case pertained to the petitioner accused of wrongfully restraining and stabbing the de facto complainant with the intention to commit culpable homicide not amounting to murder. The petitioner was thereby accused of committing offences under Sections 341 ('Punishment for wrongful restraint'), 325 ('Punishment for voluntarily causing grievous hurt') and 308 ('Attempt to commit culpable homicide') of the Indian Penal Code.

The High Court had earlier dismissed his anticipatory bail plea observing that the wound certificate and the statement of the de facto complainant indicated that the petitioner-accused had assaulted the latter, and the said occurrence could not be read along with other occurrences the petitioner had alleged to be involved. The Court had thus refused anticipatory bail to the petitioner noting that his arrest and custodial interrogation was 'absolutely necessary' for recovery of the weapon alleged to be used by him. 

It is in this context that the present subsequent anticipatory bail plea was filed by the petitioner citing a change in circumstance. Counsel for the petitioner averred that there was a change in circumstance given that petitioner was granted anticipatory bail in other crimes connected with the present crime. It was submitted that the petitioner was entitled to anticipatory bail, since there was no necessity to have custodial interrogation in the case. The counsel also relied upon the Rajasthan High Court decision in Ganesh Raj v. State of Rajasthan & Ors. (2005) to argue that second or subsequent anticipatory bail applications are allowed in case of change of circumstances.

Public Prosecutor Vipin Narayan A. submitted on behalf of the respondents that subsequent to the High Court's dismissal of petitioner's anticipatory bail plea, the petitioner filed another anticipatory bail application before the Sessions Judge, Thrissur by suppressing the High Court's dismissal order. The Sessions Judge accordingly dismissed the said anticipatory bail plea, as well, on that ground. The Prosecutor thus argued that the petitioner's filing of anticipatory bail application before the Sessions Judge, by suppressing the dismissal of the earlier order by the High Court ought to be deprecated. He also prayed for a guideline stating that second or successive applications shall be filed before the High Court on ground of change of circumstance, after the dismissal of the earlier application by the High Court. 

The Court in this case noted that although two other cases had been registered against the petitioner, the case at hand was a solitary incident, and that there was no change of circumstances otherwise available to grant anticipatory bail to the petitioner. 

The Court thus dismissed the present anticipatory bail plea as well, and laid down that subsequent bail applications would have to be filed before the High Court and not before the Sessions Court.

The petitioner was represented by Advocates Biju Antony Aloor, K.P. Prasanth, Archana Suresh, Haseeb Hassan M., Ardra P., and Sameeskha P.R. Advocate C.K. Jayakumar also appeared on behalf of the respondents. 

Case Title: Bipin Sunny v. State of Kerala & Ors. 

Citation: 2023 LiveLaw (Ker) 356 

Case Number: BAIL APPL. NO. 4416 OF 2023

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