Anticipatory Bail or Pre-arrest Bail: It is a legal provision that allows an accused person to apply for bail before being arrested. In India, pre-arrest bail is granted under section 438 of the Code of Criminal Procedure, 1973. It is issued only by the Sessions Court and High Court.

The provision of pre-arrest bail is discretionary, and the court may grant bail after considering the nature and gravity of the offence, the antecedents of the accused, and other relevant factors. The court may also impose certain conditions while granting bail, such as surrendering the passport, refraining from leaving the country or reporting to the police station regularly.

What are the Conditions for Granting an Anticipatory Bail in India?

• The person seeking anticipatory bail should have reason to believe that they may be arrested for a non-bailable offence.
• The court may also impose a monetary bond, which the person seeking anticipatory bail will have to pay if they fail to appear before the court or violate the conditions imposed.
• The person seeking anticipatory bail must make themselves available for interrogation by the investigating officer as and when required.
• The court may grant anticipatory bail for a limited period, and the person will have to surrender to custody once the period expires.
• It is important to note that the granting of anticipatory bail is at the discretion of the court and is not an absolute right. The court will consider various factors, such as the nature and gravity of the offence, the antecedents of the person seeking anticipatory bail, and the likelihood of the person absconding or tampering with evidence, before deciding whether to grant anticipatory bail.

Kerala High Court delivered

Even though there is no absolute embargo in filing a plea for pre-arrest bail after it has been dismissed once, such a plea can be entertained again only if there is a substantial change in the facts, the Court said.

The Kerala High Court recently observed that there is no absolute bar on filing an application for anticipatory bail a second time after its dismissal or acceptance the first time round. [Suresh KM V State of Kerala & Anr.].

However, Justice Kauser Edappagath added that such a second anticipatory bail plea can be entertained only if there is a change in the facts of the case which necessitates the interference of the Court with the earlier bail order.

“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,” the Court said.

Otherwise, an order granting or refusing to grant a pre-arrest bail application is a final order, and the entertainment of a second plea would amount to reviewing such a final order, the Court explained.

The High Court made the observation while dismissing a pre-arrest bail application filed by a man whose first application for anticipatory bail was rejected.

The man stood accused of sexually assaulting a woman and was charged with offences punishable under Sections 354 (outraging modesty of a woman) and 511 of 376C (related to punishment for rape) of the Indian Penal Code (IPC).

The Senior Advocate representing the accused contended that in the first application, the Court was not informed that the woman’s husband had a habit of filing frivolous complaints.

The counsel added that since the police had finished their custodial interrogation, the accused man’s arrest was not mandatory.

He contended that the principle of res judicata or estoppel does not apply to criminal jurisprudence. As such, there is no bar to prevent the accused from filing successive bail applications if there are sufficient grounds, he argued.

The High Court, however, found that the accused man had not submitted any material to prove his allegation that the woman’s husband had filed frivolous petitions.

The Court added that even if the custodial interrogation was not required, that by itself is not a ground to grant anticipatory bail. The High Court proceeded to dismiss the anticipatory bail plea.