As the Kerala High Court re-opens after Onam holidays, the third bail application filed by Malayalam film actor Dileep in the crime pertaining to sexual assault of a co-actor will be closely watched by all. The earlier bail applications were considered and dismissed by Justice Sunil Thomas. An interesting development is that the roster of judges has been changed now and Justice Sunil Thomas is moved to another jurisdiction dealing with admission and hearing of cases relating to Abkari and NDPS Acts.
Now the question is whether the change in roster will improve the chances of getting bail for Dileep from another bench. Bail is not supposed to be on the hunch of the bench, as per the words of Justice Krishna Iyer. However, experienced lawyers will vouch for the fact that in bail applications, a lot depends on the temperament and the inclination of the judge, since there is a lot of room for judicial discretion. Taking advantage of that, there used to be practice of ‘forum-shopping’ in bail applications, whereby successive bail applications used to be filed to try luck before different judges.
Anyhow, there is no chance of hearing Dileep’s bail application by another Judge; particularly so after the pronouncement of the full bench of the Kerala High Court in Firos Ali vs State of Kerala. Therein, the full bench issued guidelines for dealing with successive bail applications. It was categorically held that the subsequent bail application by the accused shall be heard by the same learned Judge who had passed orders in the earlier applications in the same crime.
The said safeguard has been taken to avoid the possibility to conflicting orders, and to minimise the chances for indulging in forum shopping. Also, this will save time of the court as a Judge familiar with the facts will be able to dispose of the subsequent application/applications effectively and as the same would be conducive to judicial discipline. The said guidelines are based on the decision of the Supreme Court in Jagmohan Dayal vs State(NCT of Delhi) 2014(14) SCALE 224. However, the Kerala High Court also clarified that the said direction will not be applicable to a bail application filed by a co-accused, and such bail application will be dealt with in the normal course as per the roster.
The first bail application of Dileep before the high court was dismissed by Justice Sunil Thomas on July 24, 2017. It was observed therein that “the case is unique,considering its seriousness, meticulous planning, cruel nature of execution and being a crime executed to wreak vengeance on a woman by engaging criminals to sexually abuse her. The Court must be circumspect in granting bail in such cases”.
The second bail application of Dileep before the high court was dismissed as per order dated August 29, 2017. Dismissing the application, Justice Sunil Thomas observed: “The investigation is still progressing. There does not appear to be any substantial change of circumstance. Having considered the entire facts, I am not inclined to grant bail to the petitioner at this stage.”
So, the third application for bail moved by Dileep will be posted before Justice Sunil Thomas and none else. The change in roster is not going to have any effect on the bail application.
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