Abuse Of Process: Kerala HC Dismisses Third Anticipatory Bail Application, Warns Of Costs & Directs Accused To Surrender

Justice A Badharudeen stated that the petition was an abuse of the process of the Court and warned of imposition of cost.

“Therefore, the present petition is absolutely an abuse of process of court in the facts of the case discussed and which would deserve dismissal. In fact, imposition of cost also to be considered, but for the time being, I avoid imposition of cost.”

The Court also stated that the investigating officer has not shown callous negligence in proceedings against the petitioner even though he violated the order of surrender of the Apex Court. The Court thus directed the investigating officer to expedite the investigation as per law without fail.

The petitioner is accused in a crime registered under Sections 341 (punishment for wrongful restraint), 324 (voluntarily causing hurt by dangerous weapons or means) and 308 (attempt to culpable homicide) of IPC.

The specific allegation was that the petitioner wrongfully restrained and stabbed the de facto complainant intending to commit culpable homicide, not amounting to murder and causing him injury.

The first two bail applications filed by the petitioner were dismissed. The Apex Court in Special Leave to Appeal (Criminal) in November 2023 permitted the petitioner to withdraw it and directed thus: “The petitioner has prayed for and is granted two weeks' time to surrender and apply for regular bail which will be considered by the trial court on its own merits.”

The petitioner argued that the third anticipatory bail application was filed stating a change of circumstances. It was further stated that the offence under Section 325 of the IPC was deleted and Section 324 of the IPC was added.

On the other hand, the public prosecutor submitted that the petition was unwarranted and was filed to avoid surrender as directed by the Apex Court. It was also submitted that an anticipatory bail application cannot be granted since the arrest, custodial interrogation and recovery of weapons were inevitable parts of the investigation and his grievances were considered in the earlier orders of the Court.

Relying upon precedents, the Court stated that filing successive bail applications before the High Court and Sessions Court without showing any change in the fact situation or circumstances was an abuse of process of the Court.

The Court referred to Muhammed Ziyad v. State of Kerala (2015) to state that successive bail applications on the same subject once filed has to be placed before the same Judge who disposed of the earlier application to prevent abuse of the process of the Court by filing successive bail applications.

It also relied upon the directions issued by the Apex Court in Kusha Duruka v. State of Odisha (2024) in dealing with bail applications. It stated that details of orders passed in earlier bail applications have to be submitted while filing a successive bail application. In the facts of the case, the Court stated that the petitioner did not produce copies of his earlier bail orders.

Accordingly, the Court dismissed the anticipatory bail application and directed the petitioner to surrender before the Investigating Officer within seven days. It directed that on failure to surrender, the investigating officer shall arrest the petitioner for continuing the investigation.

Counsel for Petitioner: Advocates Joby Cyriac, Kurian K Jose

Counsel for Respondents: Senior Public Prosecutor Denny K Devassy

Citation: 2024 LiveLaw (Ker) 156

Case title: Bipin Sunny v State of Kerala

Case number: BAIL APPL. NO. 1269 OF 2024

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