Can second Anticipatory Bail be filed?
Bail is given to an accused person whose trial is still pending and he needs to
appear in the court whenever required. Bail can be given in exchange of a sum of
money or by handing over any property to grant the freedom of the accused
person. The provisions regarding the bail had been described in Criminal
Procedure Code, 1973 from section 436 to 450.
Under section 438 of Criminal Procedure Code, 1973(Cr.P.C) if a person is likely
to be arrested can apply for anticipatory bail for the crime he did not
committed but it should be before he is arrested to appear before court, to
apply for the anticipatory bail application and prove his innocence.
Successive Anticipatory Bail
Every citizen has right to file anticipatory bail as many times as they pleased
if they believe that sooner or later they can be arrested for the crime they
didnít commit. But there are certain limitations given by the court.
First, successive anticipatory bail can be filed only if there is a rejection in
the first application, second if there is a change in circumstances and facts in
the same case respective to the first application like filing a charge sheet,
favourable evidence by investigation department or recorded evidence against the
complainant can lead the person to file for successive anticipatory. However,
ďthese successive anticipatory bail is to be placed before the same judge who
declined it in the first place.Ē On this statement Supreme court of India passed
a judgement mentioned below.
In case of Jagmohan Bahl and another v. State (NCT of Delhi ) and another
appellant filed an appeal for anticipatory bail as the second respondent filled
a FIR against him claiming that he cheated, misappropriated the money and
criminal breach of trust.
Firstly he offered respondent the property and after the respondent paid
advance, the rest amount to be paid during registration. Secondly, he delayed
the registration date moreover, he came to an agreement with second respondent
for the same property shown to the first respondent. Under article 438 CrPC he
grants anticipatory bail which was denied by Sixth Additional Session Judge.
After the expiry of three weeks appellant filled second application to Fourth
Additional Session Judge granted bail to the appellant
On this the High Court comes to certain decisions that the conduct of the
agreement by appellant needs custodial interrogation and the fact that rejection
of bail by Sixth Additional Session Judge and applied for second anticipatory
bail by Fourth Additional Sessions Judge when the judge who dealt the matter
before had not transferred nor was on leave for considerable length of time and
was available in the court is the abuse of the process of court.
On this the Supreme Court says that if successive bail application on the same
subject take place with different judges until the appellant is not satisfy with
the result it leads to forum shopping. Therefore judicial discipline requires
that such matters to be executed by the same judge who rejected the bail at the
first place to avoid the misuse of courts time and same judge can dispose the
matter quickly as he was aware of the facts and it will also result in
The Supreme Court held that when Sixth Additional Session Judge declined the
application then Fourth Additional Session Judge should had informed the
appellant. However it is the duty of prosecution to bring it to the concerned of
the judge that previously the bail had been denied by different judge. The
Supreme Court be of the same opinion of the High Court cancelled the bail in
In case of Bebi Devi and Ors v. State Of Bihar
, informant filed a F.I.R
against the husband of petitioner No 1 claiming that when he was repairing the
roof of the petitionerís neighbour being the Gotias (having same neighbourhood)
they came into an argument to which petitionerís husband came forward with the
riffle and shoot towards the stones. Evidently no one was injured during the
incident. The anticipatory bail failed by the petitioner was rejected by learned
Under Section 504 police submitted the chargesheet for the moment but chief
judicial magistrate declined. When petitioner went before the Sessions Judge for
the application it was rejected for the reason that the second anticipatory bail
is not maintainable. After explaining that both the applications were filed at
different times and under different circumstances. Thus, they appeal for second
anticipatory bail as nothing in law prevents to file the same. Under Section
438(2) of Criminal Procedure Code court held that the petitioner shall be
released on a bail.
In the case An Application For AnticipatoryÖ vs Unknown petitioner earlier
appeal for anticipatory bail which was rejected but now when the chargesheet is
submitted and investigation took place under the offence of Sections
341/326/307/379/34 of Indian Penal Code and proved that the petitioner did not
commit any offence under section 307 of Indian Penal Code and the injured person
was also not injured badly therefore, Section 326, Indian penal code was also
Thus, petitionerís lawyer demand for second anticipatory bail as the change of
circumstances took place. The opposition Learned Public Prosecutor was against
the explanation given by petitionerís lawyer because according to the
chargesheet Section 308, IPC was mentioned in there not Section 307, IPC and the
injury report which was presented at the time of rejection of first anticipatory
bail under section 438 Criminal Procedure Code and the material which is present
in CD shall not be considered again and therefore according to him, no change in
circumstances took place.
After hearing both the parties court held that as investigation for the offence
under section 307, IPC is going on but according to the chargesheet Section
341/326/308/379/34, IPC has been submitted so change of circumstances took
place. Therefore second anticipatory bail is well maintainable. After examining
CD for injury report, the injured person was released from the hospital within 8
days. Physical assault by some person was mentioned although, custodial
interrogation of petitioner is not necessary according to the chargesheet.
Hence, court had no reason to decline the second anticipatory bail.