Pre-arrest bail application is maintainable even for newly added non-bailable offences against already bailed individuals under certain conditions.

ORDER :

A. Hari Haranadha Sarma, J.

1. This is an application filed under Section 482 of Bharatiya Nagarik Suraksha Sanhita , 2023.

2. The petitioners herein are arrayed as Accused Nos.1 to 12 in Crime No.105 of 2024 of Bukkapatnam Police Station, Sri Sathya Sai District, which was registered with the allegations of committing the offences under Sections 118(1), 3(5) of the BNS and the accused were bailed out. But, subsequently, charge sheet was presented by the Police for the offences under Sections 118(1), 118(2) read with 3(5) of the BNS, citing the reason that the investigation disclosed the offence in terms of Section 118(2) read with 3(5) of the BNS.

3. Petitioners claimed that in view of adding of Section 118(2) of the BNS, they are afraid of arrest. Hence, the petitioners pray for a direction to release them on Bail, in the event of their arrest.

4. Heard both sides.

5. Point for determination:

Whether the petitioners/accused Nos.1 to 12 are entitled for the relief of pre-arrest bail in respect of Crime No.105 of 2024 of Bukkapatnam Police Station, in terms of Section 482 of BNSS in respect of newly added Section viz. 118(2) of B.N.S. If so, on what conditions?

Point:

6. Special circumstance in this case is that the accused are already bailed out, but subsequently new offences are added. Then, pertinent questions are: what is the recourse open? whether the re-arrest of accused is permissible ignoring the earlier bail order? and whether the petitioners / accused, who are already on bail, can maintain another application for bail including an application for pre-arrest / anticipatory bail?

Arguments of the learned counsel for the petitioners:

7. Learned counsel for the petitioners submitted that although the petitioners are released on bail, in view of adding of a new Section i.e. 118(2) of BNS, there is every likelihood of arrest. Petitioners did not violate any conditions of bail. Hence, the petitioners deserve grant of pre-arrest bail under Section 482 of the BNSS in respect of newly added Section 118(2) of BNS and that they are ready to furnish sureties that may be ordered.

Arguments of the learned Assistant Public Prosecutor:

8. Sri K. Sandeep, learned Assistant Public Prosecutor formerly opposed the application stating that the victim sustained grievous injuries. Hence, Section 118(2) of the BNS is added and that the petitioners are not entitled for pre-arrest bail.

Analysis, discussion and conclusions:

9. While addressing the observations in  Syed Inayath Ullah vs. The State of Telangana , 2022 SCC OnLine TS 337: (2022) 2 ALT (Cri) 37 , made by the Hon’ble High Court for the State of Telangana that, when once the Police concerned followed the procedure under Section 41-A Cr.P.C., and the guidelines formulated by the Hon’ble Supreme Court in Arnesh Kumar vs. State of Bihar, [(2014) 8 SCC 273] for arrest of accused, subsequently, the Police shall obtain the permission of the concerned Court, and arrest cannot be done at the whims and fancies of the Police, the learned counsel for the petitioners submitted that, the situation in the case referred is where Police initially resorted to Section 41-A Cr.P.C. and subsequently trying to arrest but, the context in the present case before this Court is different. Therefore, protection of the Court is necessary in this case as threat of arrest is hanging on the head of the petitioners herein. The petitioners/ accused herein are ready to furnish fresh bail bonds in respect of the newly added section(s).

10. While taking note of the submissions made by the learned counsel for the petitioners and learned Assistan