A Sessions Judge rejects an application for anticipatory bail. Can the applicant thereafter file a fresh application before the High Court?

Question: A Sessions Judge rejects an application for anticipatory bail. Can the applicant thereafter file a fresh application before the High Court? [WBJS 1999]

Find the answer only on Legal Bites. [A Sessions Judge rejects an application for anticipatory bail. Can the applicant thereafter file a fresh application before the High Court?]

Answer

The concept of anticipatory bail has been the by-product of judicial decisions on the interpretation of Sections 496, 497, and 498 of the Code of Criminal Procedure, 1898. The grant of anticipatory bail has now been crystallized into a legal concept in Section 438 of the Code of Criminal Procedure 1973.

According to sub-section 1 of section 438 of CrPC, any person can apply for anticipatory bail if he has a reason to believe that he may be arrested on accusation of having committed a non-bailable offence.

The sub-section 1 provides that such an application can only be moved before the High Court or Session Court that is empowered to give direction to the investigating authority seeking the arrest of such applicant, to release the applicant on bail in case of arrest for a non-bailable offence.

The sub-section (1) further states that, in case the application for anticipatory bail has been rejected by the concerned court or if interim relief is not granted while the pendency of the said application then it is open for the investigating agency to arrest the said applicant without a warrant on the basis of the accusation apprehended in such application. Here the legislature has given secret powers to investigating authority to take into account the apprehension made out by the applicant and consider his apprehensions as alleged crime and arrest him to investigate why he is apprehending such an arrest.

The High Courts and Court of Sessions (“Courts”) in India are empowered to make an Order granting anticipatory bail that in the event of arrest; a person shall be forthwith released on bail without having to undergo the rigor of jail.

Generally, the applicant has to first approach the Court of Sessions for moving an application for anticipatory bail unless special circumstances exist for filing the same in the High Court. If an application is rejected by the Court of Sessions, a fresh application cannot be made to the High Court. Where an application for Anticipatory Bail has been rejected by the High Court, thereafter a subsequent application for anticipatory bail cannot be entertained by the Court of Sessions.

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