Kerala High Court: While dealing with a question whether a person who has already been arrested in connection with the same crime and then released on transit bail can maintain a pre-arrest bail application, a Single Judge Bench of Dr. Kauser Edappagath, J., while dismissing the bail application, held that a pre-arrest bail under Section 482 of the Nagarik Suraksha Sanhita, 2023 (BNSS) is not maintainable after arrest and release on transit bail for the sameoffence and that the only remedy the accused has is to seek regular bail.
Background:
A minor girl aged 12 years, while using her father’s mobile phone, downloaded Snapchat and began interacting with several users, including one identified as ‘Jinhwa’, and subsequently ‘Korean Boy’, Smcamilaa’, and ‘Seo Joon’, allegedly operated by other accused, including the present applicant. The applicant, a native of Jammu and Kashmir, was arrested on 12-10-2025 by the Cyber Crime Police Station, Thiruvananthapuram, alleging offences punishable under Section 78(1)(ii) read with Section 3(5) of the Nyaya Sanhita, 2023 (‘BNS’), Section 67-B of the Information Technology Act, 2000 (‘IT Act’), and Section 14 read with Section 13 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’). He was produced before the Fast Track Court (POCSO Cases), Jammu, and was granted transit bail for a limited period of 15 days with a direction to surrender before the investigating officer (‘IO’) at Thiruvananthapuram within 15 days, failing which liberty to arrest was reserved. Thereafter, the applicant filed the present application seeking pre-arrest bail.
Parties’ Contentions:
The applicant’s counsel submitted that he was falsely implicated with no materials on record to connect him with the alleged crime, and the electronic device allegedly used was already surrendered, thereby making custodial interrogation unnecessary. It was argued that there was nothing in Section 482 BNSS to indicate that a person who was not in custody on account of transit bail and is apprehending re-arrest is not entitled to maintain a pre-arrest bail application.
On the other hand, the Senior Public Prosecutor submitted that the pre-arrest bail application was not maintainable as the applicant was already arrested and released on transit bail. He added that custodial interrogation was necessary and further contended that the alleged incident occurred as a part of applicant’s intentional criminal acts and if he was released on bail, it would affect the course of investigation. The Amicus Curiae also endorsed the objection on maintainability, submitting that once already arrested, there could be no apprehension of arrest so as to maintain an application for pre-arrest bail.
Analysis and Decision:
The Court noted that the applicant was arrested and produced before the Fast Track Court (POCSO Cases), Jammu, and that instead of resorting to Section 187(2) BNSS, the Magistrate granted transit bail to him. The Court relied on Priya Indoria v. State of Karnataka, (2024) 4 SCC 749, wherein it was held that when a court cannot grant pre-arrest bail in cases where crimes have been registered outside its territorial jurisdiction, it is empowered to pass an order of transit bail, however, the dictum applies to a case where a person commits an offence in one State and the FIR is registered within the jurisdiction where the offence was committed, but the accused resides in another State. The Court clarified that Priya Indoria (supra) did not apply where the accused was already arrested.
The Court clarified that under Section 482(1) BNSS, a pre-arrest bail could be maintained only by a person who has reason to believe that he might be arrested on an accusation of having committed a non-bailable offence. The Court opined that the provision safeguarded individuals from the possibility of being arrested with malicious intent, and that pre-arrest bail must be sought before an arrest was made.
The Court referred to Kamal Sabharwal v. State of Assam, 2025 SCC OnLine Gau 4456, where it was held that an application for pre-arrest bail under Section 438 of the Criminal Procedure Code, 1973 (‘CrPC’) (corresponding to Section 482 BNSS), is not maintainable once a person is already arrested and released on transit bail.
Consequently, the Court, while dismissing the bail application, held that the application for pre-arrest bail was not maintainable and the only remedy open to the applicant was either to surrender before the IO or to appear before the jurisdictional court and seek regular bail. The Court also clarified that extraordinary discretionary jurisdiction vested with this Court could not be invoked as the applicant failed to comply with the directions of the transit bail.
[Pankaj Kumar v. State of Kerala, Bail Appl. No. 13662 of 2025, decided on 11-2-2026]
Advocates who appeared in this case:
For the Applicant: R.S. Lakshman, Pranav Krishna, Advocates.
For the Respondents: M.C. Ashi, SR. PP.
Amicus Curiae: S. Rajeev
Buy Protection of Children from Sexual Offences Act, 2012 HERE
Buy Code of Criminal Procedure, 1973 HERE
