As a general rule, it can be stated that a second application for anticipatory bail is not barred. Even though the principle of res judicata is not directly applicable in a criminal case, especially in a bail application, there is a strong line of thinking that the courts are bound by the doctrine of judicial discipline. Therefore, the general proposition that a second bail application for pre-arrest bail is not legally barred is controlled by certain riders.

# Pre-arrest Bail

Primarily, it has to be established by the applicant in the second application that there is a material change in the fact situation which makes him entitled to seek the relief. In otherwords, the applicant should establish a change in the circumstances sufficient to persuade the court to invoke its extraordinary jurisdiction in favour of him.

The change of circumstances can be in many ways. For example, his earlier application must have been disposed of by the court considering the submission of the Prosecutor that he was not involved in any offence at that time or that he was involved only in bailable offences.

Another instance could be that the petitioner might have been accused of a non-bailable offence of a grave nature and therefore the court must have felt that his custodial interrogation was essential for a proper investigation. If the petitioner subsequently shows that though he is involved in a non-bailable offence, the gravity of the offence is much lesser than that had been initially alleged against him and there is no reason for any custodial interrogation, then he may legitimately claim a relief under Section 438 Cr.P.C.

These are some of the instances the petitioner may rely on to urge that there is a material change in the fact situation enabling him to seek a pre-arrest bail through a subsequent application. In the absence of any such plea raised or fact established at the time of hearing, no doubt, an applicant is legally not entitled to seek pre-arrest bail by way of a second application.

Recently a learned Single Judge of Kerala High Court in Muhammed Ziyad v. State of Kerala, 2015 (4) KLJ 22 has deprecated the practice of filing successive bail applications without any legal justification.

Full Bench of the Calcutta High Court in Sudip Sen v. State of W.B., 2010 Cri.L.J. 4628 reiterated the well settled principle that there is no general bar or impediment in moving a second application for bail, whether it be pre-arrest bail or regular bail.

In paragraph 31 the court summed up the discussion. The point relevant is quoted hereunder:-

“(c) 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.”

Three Judge Bench of the Supreme Court in Kalyan Chandra Sarkar v. Rajesh Ranjan, AIR 2005 SC 921 considered the legality and propriety of successive bail applications. Relevant portion is quoted hereunder:-

“19. The principles of res judicata and such analogous principles although are not applicable in a criminal proceeding, still the Courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our country. The findings of a higher Court or a coordinate bench must receive serious consideration at the hands of the Court entertaining a bail application at a later stage when the same had been rejected earlier.

In such an event, the courts must give due weight to the grounds which weighed with the former or higher court in rejecting the bail application. Ordinarily, the issues which had been canvassed earlier would not be permitted to be re-agitated on the same grounds, as the same it would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting.

20. The decisions given by a superior forum, undoubtedly, is binding on the subordinate fora on the same issue even in bail matters unless of course, there is a material change in the fact situation calling for a different view being taken. Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done 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.

This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Therefore, we are not in agreement with the argument of learned counsel for the accused that in view the guaranty conferred on a person under Article 21 of the Constitution of India, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by courts earlier including the Apex Court of the country.”

In the light of the principles of law stated in the binding precedent by the Supreme Court, there cannot be any doubt that successive bail applications without showing any change in the fact situation or circumstance requiring the invocation of the extraordinary jurisdiction of the High Court or Court of Sessions under Section 438 Cr.P.C. can only be regarded as an abuse of the process of court.

{The above passage on Anticipatory Bail is quoted from a recent Order of the Kerala High Court in the matter of Vineeth Vs. State of Kerala dated 1 October, 2015 authored by Justice A. Hariprasad.]

Is Second Application For Anticipatory Bail barred ?