Second Anticipatory Bail Under S.482 BNSS Not Maintainable Without Changed Circumstances, Especially if Accused Absconding: High Court - 2024-10-29

High Court Rejects Second Anticipatory Bail Plea Citing Lack of Changed Circumstances and Absconding Status

Chandigarh: In a recent judgment, the High Court, presided over by Justice KirtiSingh , dismissed a second petition for anticipatory bail filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), emphasizing that such successive applications are generally not maintainable without a substantial change in facts and circumstances, particularly when the accused is evading the legal process.

The petitioner sought pre-arrest bail in a case registered under Sections 302 (Murder), 307 (Attempt to Murder), and 34 (Common Intention) of the Indian Penal Code, 1860, along with Sections 25/27 of the Arms Act, 1959, at Police Station Khalra, District Tarn Taran (FIR No.111 dated 01.11.2022). An earlier anticipatory bail application (CRM-M-38379-2024) filed by the petitioner had already been dismissed on merits by the court on September 10, 2024.

Case Background

The FIR was lodged based on the statement of Daler Singh , alleging that a dispute over mortgaged land led to a confrontation. During this, the petitioner's uncle ( Pargat Singh ) allegedly incited his son ( Nachhatar Singh ) to shoot. It was alleged that Nachhatar Singh then fired multiple shots from a pistol, injuring the complainant ( Daler Singh ) and fatally wounding his father ( Jasbir Singh ). While the initial police report named Pargat Singh and Nachhatar Singh , the present petitioner was later summoned as an additional accused under Section 319 Cr.P.C. by the Sessions Judge, Tarn Taran , on July 23, 2024. Subsequently, non-bailable warrants were issued against the petitioner, and proceedings under Section 82 Cr.P.C. (proclamation for person absconding) were initiated on September 17, 2024.

Arguments Presented

Petitioner's Counsel: Argued that the second petition was maintainable as crucial documents, including supplementary statements and an order granting bail to a co-accused ( Pargat Singh ), were not considered in the first petition. Reliance was placed on judgments like Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav and Babu Singh and others vs. State of U.P. to argue for the maintainability of subsequent bail applications.

State and Complainant's Counsel: Vehemently opposed the plea, arguing it was non-maintainable as the first application was dismissed on merits. They contended the documents cited were known previously and the petitioner should surrender and seek regular bail. They asserted that a second anticipatory bail plea cannot be entertained merely by re-agitating points or introducing previously available material. They stressed that the petitioner was absconding, and proclamation proceedings were underway.

Court's Analysis on Maintainability

Justice KirtiSingh first addressed the preliminary issue: whether a second anticipatory bail application under Section 482 BNSS is maintainable after the dismissal of the first one.

The Court extensively reviewed legal precedents:

Maya Rani Guin vs. State of West Bengal (Calcutta HC Full Bench): Held that entertaining a second application amounts to review, which isn't permissible if the accusation remains the same. Even new circumstances wouldn't make a second anticipatory bail plea maintainable.

Ganesh Raj vs. State of Rajasthan (Rajasthan HC Full Bench): While citing the Supreme Court in Kalyan Chandra Sarkar , this judgment clarified that subsequent bail applications (not necessarily anticipatory) are permissible if there's a change in the fact situation or law . However, it explicitly stated that a second anticipatory bail application should not be entertained based on new circumstances, further details, new documents, etc., especially at the Sessions level after a High Court rejection or vice-versa.

Calcutta HC Five-Judge Bench (Re-considering Maya Rani Guin): Affirmed that a second application (to the High Court after Sessions rejection, or vice-versa) is permissible only on grounds of substantial change in facts due to subsequent events, not for re-arguing overlooked points.

Based on this settled law, the Court concluded:

"once the first anticipatory bail is denied without there being any change in the fact situation, the second application for the same relief under Section 438 Cr.P.C. [now S. 482 BNSS] cannot be entertained by making new arguments or twists by introducing new circumstances, development or material. Thus, the second application without any change in the fact situation is held to be not maintainable."

Decision on Merits

Despite holding the petition non-maintainable, the Court addressed the merits. It highlighted that the petitioner was summoned as an additional accused based on evidence, and importantly, was absconding. Non-bailable warrants were issued, and proclamation proceedings under Section 82 Cr.P.C. were initiated.

The Court cited Supreme Court rulings:

Prem Shankar Prasad v. State of Bihar (2021): Held that anticipatory bail should generally be avoided when non-bailable warrants are pending and proclamation proceedings are initiated against the accused.

Srikant Upadhyay vs. State of Bihar (2024): Reiterated that anticipatory bail is an extraordinary power, not a rule. It clarified that pendency of an anticipatory bail application (without interim protection) does not bar the trial court from issuing warrants or initiating proclamation proceedings. It strongly disapproved of granting pre-arrest bail to those continuously defying court orders and absconding.

Applying these principles, Justice Singh observed:

"it is well settled that where non-bailable warrants have been issued and proclamation proceedings under Section 82 are under way, the anticipatory bail should generally be not granted. Accordingly, anticipatory bail in such cases would under-mine the judicial authority and encourage non compliance of legal summons and warrants."

The Court further noted that statements under Section 161 Cr.P.C., cited by the petitioner, have limited value at this stage.

Final Order

Finding the second anticipatory bail petition non-maintainable due to the lack of changed circumstances and also unsuitable on merits given the petitioner's absconding status and the ongoing proclamation proceedings, the Court dismissed the petition. It clarified that the observations made were solely for deciding the bail application and should not prejudice the trial court.