When Can Second/Successive Plea For Pre-Arrest Bail Be Granted Under BNSS? Punjab & Haryana High Court Explains

The Punjab & Haryana High Court has observed that for a successive anticipatory bail petition to succeed under the BNSS, the petitioner is required to show substantial change in circumstances and "a mere superficial or ostensible change would not suffice."

Justice Sumeet Goel clarified that, "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)."

The Court added that in case, a Court chooses to grant second or successive anticipatory bail , "cogent and lucid reasons" are pertinently required to be recorded for granting such plea despite such a plea being successive petition.

It further said that once a plea for anticipatory bail has been dismissed as withdrawn/dismissed as not pressed or dismissed for non-prosecution or dismissed on merits by the High Court, no second/successive anticipatory bail petition shall be entertained by a Sessions Court.

These observations were made while hearing the third petition filed by the petitioner under Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023  (BNSS) seeking pre-arrest bail in a gang rape case.

The first plea was dismissed on account of seriousness of the offence and the second plea was withdrawn in August to file it under BNSS.

Counsel for the petitioner argued that the accused has been falsely implicated into the FIR in question and there is a delay of over 2.5 months in lodging the FIR.

State counsel opposed the grant of anticipatory bail stating that the petition, being non maintainable, as it is the third petition for grant of anticipatory bail.

After hearing the submissions, the Court court considered the question, "whether a second/successive petition for anticipatory bail filed under Section 482 of BNSS is maintainable."

"The further analogous legal issue, that arises for consideration is, if a second/successive anticipatory bail petition is maintainable in terms of Section 482 of BNSS, then what are the factors/parameters for consideration thereof," the judge added.

Justice Goel highlighted that there is no provision under BNSS relating to maintainability of second or successive bail or anticipatory bail petitions.

The Court noted that almost all the High Courts have enunciated the view that second or successive plea for grant of anticipatory bail is maintainable albeit with some circumspection and contingent upon material change in circumstance.

"Thus, this seeming conundrum stands set at naught. Accordingly, it is ineluctable that the second/successive petition(s) for grant of anticipatory bail under BNSS, 2023 is maintainable even when the first/earlier one was dismissed as withdrawn," the Court added.

In the present case, the Court noted that, the petitioner has reiterated the grounds previously taken (at the time of rejection of the first petition in 2021) except for the ground that the co-accused have been acquitted by the trial Court.

It noted further that the judgment of acquittal for other co-accused was passed in October 2022, yet merely 2 years had passed since then and it was evident that the petitioner had evaded the process of law for over three years.

Observing that the petitioner has done "undue delay, strategically aimed at frustrating the lawful proceedings/investigation," the Court said it tantamounts to an abuse of the process of justice.

Therefore, the Court opined tat the conduct of the petitioner when examined in the backdrop of the nature/severity of allegations made against the petitioner, it disentitles him for grant of anticipatory bail.

Consequently the plea was dismissed.

Title: XXX v. XXXX [CRM-M-44113-2024]

Mr. Sarfaraj Anjum Mor, Advocate for the petitioner.

Ms. Mahima Yashpal, DAG, Haryana.

Citation: 2024 LiveLaw (PH) 242