Maintainability Of A ‘Second’ Anticipatory Bail Application

Section 438 of the Code of Criminal Procedure, 1973 deals with the power of High Courts and Sessions Court to issue direction for grant of bail to person apprehending arrest. It reads as follows: (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. [ This provision is retained as such in Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023 ]

Thus the provision says that a person who apprehends arrest in a non-bailable case can file it before a High Court or a Court of Session. Suppose such a person filed an anticipatory bail petition before Sessions Court and the same got dismissed, can he file another anticipatory bail petition before the High Court? If a person filed it first before the High Court first , can he move another anticipatory bail petition before Sessions Court?

There are no Supreme Court caselaws which throw light on these aspects yet. But in the context of bail applications under Section 439 CrPC, the Supreme Court in Kalyan Chandra Sarkar vs Rajesh Ranjan @ Pappu Yadav AIR 2004 SC 1866, held as follows:- “ In regard to cases where earlier bail applications have been rejected, there is a further onus on the Court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail applications have been rejected and after such consideration, if the Court is of the opinion that bail has to be granted then the said Court will have to give specific reasons why in spite of such earlier rejection the subsequent application for bail should be granted.” In Vijay Madanlal Choudhary vs Union of India , the Supreme Court observed that anticipatory bail is nothing but a bail granted in anticipation of arrest, hence, the principles governing the grant of bail in both cases are more or less on the same footing. Therefore, the settled law that if a bail application can be moved after the dismissal of first one (showing change of circumstances) can be made applicable to successive anticipatory bail applications as well. Very recently, the Allahabad High Court observed that when an accused may move subsequent bail application he may also move subsequent anticipatory bail applications on the emergence of substantial change in facts and circumsances.

But recently, the Patna High Court dismissed a ‘second anticipatory bail’ application relying on Supreme Court order in G.R. Ananda Babu vs. State of Tamil Nadu . However, the said order does not elaborately discuss maintainability of anticipatory bail applications. But it said that ‘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.‘ The court, in facts of that case, also said that ‘successive anticipatory bail applications ought not to be entertained and more so, when the case diary and the status report, clearly indicated that the accused is absconding and not cooperating with the investigation.’

According to a Full Bench (5 Judges Bench) of Calcutta High Court (in  Sudip Sen vs The State Of West Bengal 2010 CriLJ 4628), in case a person chooses to move the Court of Session in the first instance and his application for grant of anticipatory bail under Section 438 is rejected, he can again move the High Court for the same reason under Section 438 Cr. P.C. itself. Also, where a person chooses to straightway move the High Court in the first instance and his application is rejected on the same set of facts and circumstances, he will not be entitled to move the Court of Session for the second time, but may invoke the extraordinary powers of the Supreme Court by seeking special leave to appeal in the Supreme Court. [Also refer: Imratlal Vishwakarma And Ors. vs State Of Madhya Pradesh 1997 (1) Crimes 289 ]. It was further held that a person will be entitled to move the High Court or the Court of Session, as the case may be, for the second time. He can do so only on the ground of substantial change in the facts and circumstances of the case due to subsequent events. However, he will not be entitled to move the second application on the ground that the Court on earlier occasion failed to consider any particular aspect or material on record or that any point then available to him was not agitated before the Court.

In Ganesh Raj vs State Of Rajasthan 2005 CRILJ 2086, the Rajasthan High Court held that a second or subsequent bail application can be filed 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. It was also held that second or subsequent anticipatory bail application shall not be entertained on the ground of new circumstances, further developments, different considerations, some more details, new documents or illness of the accused. Under no circumstances the second or successive anticipatory bail application shall be entertained by the Section Judge/Additional Sessions Judge.

A division bench of Kerala High Court had, in Aneesh Vs. State of Kerala : 2014 (1) KLT 790 :: 2014 (1) KHC 633 :: 2014 Cri LJ 1853 considered the issue whether a second application for anticipatory bail is maintainable on the same set of facts if the first application was dismissed as withdrawn. It was held as follows: (1) It cannot be said as an infallible and absolute rule that when an application for anticipatory bail is dismissed as withdrawn, the applicant cannot file a second application on the same set of facts (2)When a second application for anticipatory bail is made after withdrawing the first application, the court would consider the question whether the applicant was justified in withdrawing the earlier application or whether he was only gaining time or was indulging in forum shopping. The court has every discretion to deal with the application and consider  whether the relief should be granted or not in the facts and circumstances of the case. (3) When a request for withdrawal of the application for anticipatory bail is made, it would be ideal for the court to record as to why the applicant wanted to withdraw the application. If such reasons are stated, it would enable the court to deal with the second application for anticipatory bail filed at a later stage. (4) In exceptional circumstances even in the absence of change of circumstances, a second application for anticipatory bail would be maintainable after withdrawal of earlier application, provided the court is satisfied that the attempt of the accused is not to delay the investigation of the case or to gain time in the matter of arrest or for some other undesirable gains. This view is seen upheld by the Supreme Court in Rani Dudeja vs State of Haryana (2017) 13 SCC 555.