There are two situations in which the question needs to be answered separately.
Firstly, it may be remembered that under Section 438 of the Cr.P.C., anticipatory bail can be granted by the Sessions Court as well as by the High Court. Such an application can be made before either of these courts. They have concurrent jurisdiction. Now, suppose the first anticipatory bail application was rejected by the Sessions Court, then definitely the second anticipatory bail can be filed before the high court.
Secondly, now suppose the anticipatory bail application was rejected by say high court, then whether a second anticipatory bail application can be filed before the same high court? Or, if such application was first rejected by the Sessions Court, can a second such application be filed before the same Sessions Court? This is slightly different question.
However, even in the second situation, a Full Bench of the Rajasthan high court [Ganesh Raj v. State of Rajasthan, 2005 Cri LJ 2086 (FB)] has held that a second anticipatory bail application can be filed in the following circumstances:
“…second or subsequent bail application under Section 438 Cr.P.C. can be filed if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Second or subsequent anticipatory bail application shall not be entertained on the ground of new circumstances, further developments, different considerations, some more details, new documents or illness of the accused.”
In a recent case before the Supreme Court in Jagmohan Bahl v. State (NCT of Delhi), (2014) 16 SCC 501, the appellants had moved an application under Section 438 Cr.P.C. for grant of anticipatory bail which was dismissed by Sixth Additional Sessions Judge. Thereafter, appellants after expiry of three weeks filed second application under Section 438 Cr.P.C. Fourth Additional Sessions Judge allowed the same. The high court set aside the order of anticipatory bail. In this case, the Supreme Court observed that the Judge, who has declined to entertain the prayer for grant of bail, if available, should hear the second bail application or the successive bail applications. It is in consonance with the principle of judicial decorum, discipline and propriety. Needless to say, unless such principle is adhered to, there is enormous possibility of forum-shopping which has no sanction in law and definitely, has no sanctity. If the same is allowed to prevail, it is likely to usher in anarchy, whim and caprice and in the ultimate eventuate shake the faith in the adjudicating system. This cannot be allowed to be encouraged. The Supreme Court held that when the Sixth Additional Sessions Judge had declined to grant the bail application, the next Fourth Additional Sessions Judge should have been well advised to place the matter before the same Judge. In view of these, the Supreme Court concurred with the reasoning given by the High Court, but in the facts and circumstances of the case, it set aside the direction cancelling the order of anticipatory bail. Thus, from the observations of the Supreme Court, it clearly appears that a second anticipatory bail application can be filed, though it has observed that such second application should be handled by the same judge who had rejected it on the first occasion.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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