Successive Anticipatory Bail Applications Maintainable Even When Earlier Plea Was Dismissed: Punjab & Haryana High Court

The Punjab & Haryana High Court has said that successive bail applications filed under Section 438 CrPC are maintainable even if the earlier petition was dismissed.

Justice Sumeet Goel said, "Second/successive anticipatory bail petition(s) is maintainable whether earlier petition was dismissed as withdrawn/dismissed as not pressed/dismissed for non-prosecution or earlier petition was dismissed on merits."

The Court also summarised the following principles:

i) Second/successive anticipatory bail petition(s) filed under Section 438 of Cr.P.C., 1973 is maintainable in law & hence such petition ought not to be rejected solely on the ground of maintainability thereof.

ii) For the second/successive anticipatory bail petition(s) to succeed, the petitioner/applicant shall be essentially/pertinently required to show substantial change in circumstances and showing of a mere superficial or ostensible change would not suffice.

iii) No exhaustive guidelines can possibly be laid down as to what would constitute substantial change in circumstances as every case has its own unique facts/circumstance. Accordingly, this issue is best left to the judicial wisdom and discretion of the Court dealing with such second/successive anticipatory bail petition(s).

iv) In case a Court chooses to grant second/successive anticipatory bail petition(s), cogent and lucid reasons are pertinently required to be recorded for granting such plea despite such a plea being second/successive petition(s). In other words, the cause for a Court having successfully countenanced/entertained such second/successive petition(s) ought to be readily and clearly decipherable from the said order passed.

v) Once a plea for anticipatory bail has been dismissed as withdrawn/dismissed as not pressed/dismissed for non-prosecution or dismissed on merits by the High Court, no second/successive anticipatory bail petition(s) shall be entertained by a Sessions Court.

The Court was hearing the second pre-arrest bail of a man accused of committing rape on his own daughter, booked under Sections 354-A of IPC, Sections 376(2)(n) and 511 of IPC.

The earlier petition for grant of pre-arrest bail was dismissed as withdrawn in February.

It was argued that there are material improvements in the stand of the victim under Section 161 of and Section 164 of CrPC & the victim, by way of such material improvements, has referred to further incidents of assault.

It was stated that after the first petition was withdrawn, new photos came into the possession of the petitioner which provided fresh material and grounds for consideration as also for grant of anticipatory bail to the petitioner.

The State counsel opposed the grant of anticipatory bail to the petitioner, on account of the present petition being non-maintainable as it is a second petition for grant of anticipatory bail as also on merits thereof.

After hearing the submissions, the Court said that an analytical perusal of CrPC would elucidate that it does not contain any provision relatable to maintainability or otherwise of second or successive bail petitions, including one seeking anticipatory bail.

Once there is no statutory prohibition provided for in law, a Court is not logically empowered to import into it such prohibitions especially in case of codified and legislated law, it added.

Reliance was placed on Babu Singh and others vs. The State of U.P. 1978 AIR (SC) 527, wherein it was held that rejection of a bail petition does not, by itself, forbid a Court from considering another one later in point of time. It can be safely inferred that the decision of a Court qua bail petition (whether regular bail petition or anticipatory bail petition) is essentially an interlocutory order and hence the concept of res judicata does not apply.

The Court further explained that in view of all the High Courts is that the essential prerequisite for consideration of successive anticipatory bail is "material/substantial change in circumstances, unearthing of substantial new material and other factors of akin nature."

In the present case, the Court noted that the sole ground, as urged by counsel appearing for the petitioner, to file the second anticipatory bail is that the petitioner has come into possession of certain photographs which substantiate the case of the petitioner.

"It is worthwhile to note herein that no explication whatsoever has been put forward as to why these photographs were not previously produced along with the earlier anticipatory bail petition nor it has been explained as to how these photographs have now come to the knowledge/possession of the petitioner. Nevertheless, the perusal of said photographs...does not further the cause of petitioner for maintaining the second anticipatory bail," it added.

The Court opined that the mere fact of reliance upon the photographs cannot be a substantial change in circumstances or availability of fresh relevant material to entertain the second anticipatory bail petition.

Consequently, the plea was dismissed stating that, "the allegations raised against the petitioner are extremely serious in nature. Even if it be assumed that no recovery is to be made from the petitioner, this by itself would not be sufficient cause to grant anticipatory bail to the petitioner."

Title: XXX v. XXX

Citation: 2024 LiveLaw (PH) 113

Balvinder Sangwan, Advocate for the petitioner.

Mahima Yashpal, DAG, Haryana.