S.482 BNSS | Pre-Arrest Bail Not Maintainable After Arrest, Even If Accused Released On Transit Bail: Kerala High Court

The Kerala High Court recently held that an accused arrested and released on transit bail cannot prefer an anticipatory bail plea, and he is only allowed to prefer a regular bail application before the jurisdiction court.Dr. Justice Kauser Edappagath dismissed a pre-arrest bail application of a Kashmiri man, who is arrayed as an accused in a crime registered by the Cyber Crime Police Station, Thiruvananthapuram.The applicant is accused of the offences punishable under Sections 78(1)(ii), 3(5) of the Bharatiya Nyaya Sanhita, 2023, Section 67B of the Information Technology Act, 2000, and Sections 13 and 14 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.The prosecution allegation was that the accused exchanged photographs with a minor girl on Snapchat and persuaded her to share indecent images. After the registration of the crime, he was arrested at Kashmit on 12.10.2025 by the SHO of the Cyber Crime Police Station, Thiruvananthapuram.After arrest, the accused was produced before the Fast Track Court in Jammu. The Jammu Court on 13.10.2025 passed an order granting him transit bail for a period of 15 days on the condition that he shall surrender before the investigating officer of the afore police station in Thiruvananthapuram. Subsequently, he came before the Kerala High Court seeking anticipatory bail.The accused contended that he is innocent and was falsely implicated. He also submitted that since his electronic device was already surrendered to the police, there is no need for custodial interrogation.The prosecution opposed the bail and argued that pre-arrest bail is not maintainable since the accused was already arrested and released on transit bail. He also contended that custodial interrogation is necessary in the present case and release of the accused would prejudice the investigation.The amicus curiae supposed the prosecution case with respect to non-maintainability of anticipatory bail application. Reliance was placed on Gauhati High Court's Kamal Sabharwal v. State of Assam and Another, wherein this position was laid down.The Court then referred to Sections 35 and 187 of the Bharatiya Nagarik Suraksha Sanhita, which respectively are the provisions dealing with arrest of a person without warrant and production of an arrested person before the Magistrate. It was then noted that as per Section 187(2), when an accused is arrested without warrant and produced before a Magistrate that does not have jurisdiction to try the case or commit it for trial but considers that further detention is unnecessary, the accused may be forwarded to a Magistrate having jurisdiction.The Court distinguished the decision of the Supreme Court in Priya Indoria v. State of Karnataka, wherein it was held that an accused can only seek limited transit pre-arrest from the Court in the State where he resides but he has to seek regular or proper pre-arrest bail only from the competent court in the State where the crime is registered. It also distinguished Dhanraj Aswani v. Amar S.Mulchandani and Another since that was a case relating to whether an accused in custody can seek pre-arrest bail in another case.The Court then referred to Section 482(1) relating to pre-arrest bail and observed:“A reading of the above provision would show that a person can maintain an application for pre-arrest bail in a case where he has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence. The purpose of such a provision is to safeguard individuals from the possibility of being arrested with malicious intent. Therefore, pre-arrest bail must be sought before an arrest is made. In other words, a person who has already been arrested cannot maintain an application for pre- arrest bail, going by the wording of Section 482 of the BNSS.” Thus, the Court dismissed the application and clarified that the only remedy is to either surrender before the investigating officer or appear before the jurisdictional court for regular bail.Case No: Bail Appl. No. 13662 of 2025Case Title: Pankaj Kumar v. The Station House Officer and Anr.Citation: 2026 LiveLaw (Ker) 102Counsel for the applicant: R.S. Lakshman, Pranav KrishnaCounsel for the respondents: M.C. Ashi – Sr. Public ProsecutorAmicus Curiae: S. RajeevClick to Read/Download Order

S.482 BNSS | Pre-Arrest Bail Not Maintainable After Arrest, Even If Accused Released On Transit Bail: Kerala High Court

K. Salma Jennath

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