Can't Tolerate Experimentation In Litigation: Kerala High Court Raps Party For Filing Case Without Disclosing Earlier Matter Seeking Same Relief

Justice S. Manu passed the order while hearing the first Crl.M.C. filed by the petitioner in the case. The Public Prosecutor informed the Court that there was a second Crl.M.C., which was allowed, and that the criminal proceedings were quashed. The Court had, in an earlier interim order, directed the Registry to send a notice to the petitioner to show cause why appropriate proceedings shall not be initiated and exemplary cost shall not be imposed.

The petitioner responded pleading ignorance on his part, non-cooperation of the first counsel and communication gap between himself and his counsel. However, the counsel clarified that no one had approached him for relinquishing the vakalath and that he was unaware of the second Crl.M.C. Finding the explanations given by the petitioner to be untenable, the Court held that he had abused the process of the Court and resorted to bench hunting.

The Court observed thus:

“High Court is bestowed with inherent powers in its criminal jurisdiction that are meant to be used for the sake of justice and to forbid abuse of the process of court. This authority conferred on the High Court is meant to be used sparingly and only in appropriate circumstances. Inherent powers cannot be used to extend relief to someone who approached the court in an unclean manner and withheld important information. The High Court's authority to stop abuse of the legal system cannot be allowed to be misused by unscrupulous litigants. Those who invoke this extraordinary authority of the Court should disclose every material fact and be fair. Casual attitude in approaching this Court and experimentation in litigation cannot be tolerated.”

Finding that the inherent powers of the High Court under Section 482 of the Code of Criminal Procedure/Section 528 of BNSS are akin to the powers under Article 226 of the Constitution, the Court found that the principles laid down by the Hon'ble Supreme Court in its various decisions regarding equitable and prerogative jurisdiction would apply to the proceedings under S. 482 CrPC/S. 528 BNSS also.

The Court also referred to the judgment of the Hon'ble Supreme Court in Kusha Duruka v. State of Odisha, wherein the Court had highlighted the necessity to insist on declarations regarding previous bail applications.

The Single Judge also referred to Circular Nos. 2 of 2009 and 9 of 2009 issued by the Court requiring inclusion of statements regarding other bail applications, in applications filed before the Sessions Court and also in all other Criminal Courts.

Similar provision of Rule 146 of the Rules of the High Court of Kerala, 1971, which states that no petition under Articles 226, 227 and 228 shall be entertained by the Registry unless it contains a statement as to whether the petitioner had filed any petition seeking similar reliefs in respect of the same subject-matter earlier and if so, the result thereof, was also referred to by the Court.

Considering the need for a similar provision with respect to Crl.M.C.s, the Court also noted as below:

“Time has come to ponder about analogous declarations/undertakings being insisted in the case of Crl.M.Cs filed under Section 528 of BNSS also to prevent unscrupulous litigants from abusing the prerogative jurisdiction of the High Court and indulging in bench hunting. The Registry shall take note of this order and may take appropriate steps in this regard.”

Case No: Crl.M.C. No. 516/2021

Case Title: Shamil Muhammed v. State of Kerala and another

Citation: 2025 LiveLaw (Ker) 293

Counsel for the Petitioner: P. Anoop (Mulavana)

Counsel for the Respondents: Harish K.P., Public Prosecutor

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