Subsequent Bail Plea Cannot Be Filed In Routine Manner, Material Change In Facts Or Law Sine Qua Non: Kerala High Court

“Even though there is no absolute embargo in filing the subsequent application for pre-arrest bail, it can be entertained only if there is a substantial change in the facts and circumstances of the case, which requires the earlier view be interfered with or where, the earlier finding has become obsolete. Ordinarily, the grounds canvassed in the earlier application cannot be permitted to be reurged in the subsequent application.”

The bail application was moved by the applicant who allegedly assaulted the victim and committed offences under Section 354 (Assault or criminal force to woman with intent to outrage her modesty), 511 (Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment) and 376C (Sexual intercourse by person in authority) of the IPC.

The counsel for the applicant submitted that a successive bail application can be pursued if there is sufficient grounds as the principle of res judicata or estoppel is not applied in criminal jurisprudence. It was contended that certain vital documents are produced now which were not produced in the first bail application. It was also stated that the investigation is over and custodial interrogation is not necessary.

The public prosecutor pleaded that second bail application of the applicant is not maintainable. The first bail application of the applicant was dismissed and there is no change in circumstances for moving a new bail application, it was submitted.

The single judge stated that the extraordinary power exercised by the High Court and Sessions court in granting anticipatory bail has to be exercised with paramount importance. Pre-arrest bail cannot be given as a matter of course, as it interferes with the power of investigation of the offence. The court stated an order allowing or refusing pre-arrest bail is a final order and subsequent bail application essentially seeks review of the first order. Nonetheless, this does not mean that a subsequent bail application is totally barred. The court observed thus:

“However, a second or subsequent application for pre-arrest bail is not completely barred. It cannot be entertained in routine as well. An accused must establish the change in the circumstances sufficient to persuade the court to invoke its extraordinary jurisdiction to maintain the application for pre- arrest bail for the second time. A material change in fact situation or law is sine qua non for a second application for pre-arrest bail.”

The court relied on various decisions of the Apex Court, and other High Courts to consider the legality of the subsequent bail application moved by the applicant. It observed that subsequent bail application can be moved only when there is a change in the factual situations due to subsequent events or in law and it is imperative to interfere with the earlier order passed by the court. The grounds raised in the previous application cannot be reagitated in the subsequent application, the court stated.

Considering the law laid down by various courts, the single judge stated that the first bail application was rejected taking into account various factors such as seriousness of offence, premediated mind of the applicant, stage of investigation and necessity of the applicant in custody for the investigation. The court found that the documents produced now were in existence even when the first bail application was filed. In the present matter there is no such change in facts and circumstances, the Court stated. The Court also observed that the custody of the applicant is necessary for carrying investigation.

Based on the above findings, the court dismissed the second bail application moved by the applicant.