Point of Law: Application under Section 438 of Cr.P.C. can be filed if there is a change in fact situation or in law which require earlier view being interfered with or where earlier finding has become obsolete.

ORDER :

1. This is the second application for pre-arrest bail filed by the accused in Crime No.203/2023 of Hosdurg Police Station u/s 438 of the Code of Criminal Procedure.

2. The applicant is alleged to have committed the offences punishable under Sections 354 and 511 of 376C of the Indian Penal Code.

3. The prosecution case in short is that on 13/2/2023 at about 6.30 p.m, at the ACR Lab, the applicant sexually assaulted the victim by catching her breast and attempting to insert his finger in her vagina and thereby committed the aforesaid offences.

4. I have heard Sri. S. Sreekumar, the learned senior counsel instructed by Sri. I.V. Pramod for the applicant and Smt. S. Rekha, the learned Senior Public Prosecutor. Perused the case diary.

5. The learned senior counsel for the applicant submitted that the applicant is innocent and he has been falsely implicated in the case. The learned senior counsel further submitted that since principle of res judicata or estoppel does not apply to criminal jurisprudence, there is no bar for an accused person to make successive bail application on sufficient grounds. The learned senior counsel also submitted that certain vital documents which would show that the husband of the victim is in the habit of making frivolous complaints against others for silly reasons could not be produced at the time of consideration of the first bail application. The investigation is practically over, and hence the custodial interrogation is not necessary, added the counsel.

6. On the other hand, the learned Public Prosecutor submitted that the alleged incident occurred as a part of the intentional criminal act of the applicant, and if he is released on bail, it will affect the course of the investigation. The learned Public Prosecutor has pointed out that the applicant has not pleaded or established any change in circumstances of the case since the dismissal of the first bail application filed by him. The learned Public Prosecutor also submitted that, in the earlier proceedings, all the points available to the applicant have been urged and negatived by this court. In the absence of any change in fact situation or in law after the dismissal of the first application, the second application is not maintainable, submitted the learned Public Prosecutor.

7. The law regarding the grant of pre-arrest bail is well settled. Pre-arrest bail cannot be granted as a matter of course. Grant of pre-arrest bail to some extent interferes in the sphere of investigation of an offence, and hence, the court must be circumspect while exercising such power for the grant of anticipatory bail. The extraordinary power of the High Court and the Court of Session to grant pre-arrest bail under Section 438 of Cr.P.C could be exercised with a significant amount of prudence, care, and caution and only when a special case is made out, that too, recording reasons thereof. While exercising powers under Section 438, the Court is duty-bound to strike a balance between the individual's right to personal freedom and the investigational right of the police.

8. The order granting or refusing to grant a pre-arrest bail application is a final order, and the entertainment of a second application essentially leads to a review of the earlier order. 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 three Judge Bench of the Apex Court in Kalyan Chandra Sarkar v. Pappu Yadav [(2005 (2) KLT SN 4 (C.No. 3) SC =AIR 2005 SC 921] considered the legality and propriety of successive bail applications. It was held in paragraph 20 thus:

"Even though there is room for filing a subseque