Pre-arrest bail application is not maintainable after arrest; only regular bail may be sought subsequently.

ORDER :

KAUSER EDAPPAGATH, J.

This application is filed under Section 482of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, BNSS), seeking pre-arrest bail.

2. The applicant is accused No.3 in Crime No.109/2025 of Cyber Crime Police Station, Thiruvananthapuram City. The offences alleged are punishable under Sections 78(1)(ii) read with 3(5) of the Bharatiya Nyaya Sanhita, 2023 (for short ‘the BNS’); Section 67B of the Information Technology Act , 2000, and Section 14 read with Section 13 of the Protection of Children from Sexual Offences (PoCSO) Act, 2012.

3. The prosecution case, in short, is that a minor girl aged 12 years, while using her father’s mobile phone, downloaded the Snapchat application and began interacting with several users, including one identified as “Jinhwa” (accused No.1, namely Ishan). It is alleged that he exchanged photographs with the victim and persuaded her to share indecent images. The victim subsequently interacted with other Snapchat IDs such as “Korean Boy,” “Smcamilaa,” and “Seo Joon,” allegedly operated by other accused, including the applicant herein.

4. The applicant is a native of Jammu and Kashmir. He was arrested in connection with the above crime on 12.10.2025 at Kashmir by the SHO, Cyber Crime Police Station, Thiruvananthapuram and produced before the Fast Track Court (PoCSO Cases), Jammu. As per Annexure A4 order, he was granted transit bail for a limited period of 15 days on condition that he shall surrender before the investigating officer at Cyber Crime Police Station, Thiruvananthapuram City, within 15 days. It was made clear that if the applicant fails to do so, the Cyber Crime Police would be at liberty to arrest him. The said order was passed on 13.10.2025. Thereafter, the applicant filed the above application seeking pre-arrest bail before this Court.

5. I have heard Sri.R.S.Lakshman, the learned counsel for the applicant, Sri.M.C.Ashi, the learned Senior Public Prosecutor and Sri.S.Rajeev, the learned Amicus Curiae appointed by this Court to assist the Court.

6. The learned counsel for the applicant submitted that the applicant is innocent and has been falsely implicated in the present case. The counsel further submitted that no materials are on record to connect the applicant with the alleged crime; hence, he is entitled to bail. The learned counsel also submitted that the electronic device allegedly used by the applicant was already surrendered to the police, and hence his custodial interrogation is not necessary.

7. The learned Senior Public Prosecutor submitted that the application for pre-arrest bail is not maintainable since the applicant was already arrested and released on transit bail. On merits, it was submitted that the alleged incident occurred as a part of the applicant's intentional criminal acts, and if he is released on bail at this stage, it will affect the course of the investigation. The learned Senior Public Prosecutor added that the custodial interrogation of the applicant is necessary.

8. The learned Amicus Curiae endorsed the view of the learned Senior Public Prosecutor as to the maintainability of the pre-arrest bail application. The learned Amicus Curiae submitted that since the applicant was already arrested, he cannot entertain any apprehension of arrest so as to maintain an application for pre-arrest bail. The learned counsel relied on the judgment of the Gauhati High Court in Kamal Sabharwal v. State of Assam and Another  [2023 Supreme (Gau) 1389] in support of his submission that the application for pre-arrest bail under Section 482 of BNSS is not maintainable once the person is already arrested and released on transi