Sanchayita Lahkar

The High Court of Kerala Single Bench of Justice Kausar Edappagath dismissed a plea for pre-arrest bail filed by an accused in a cyber-crime case involving alleged sexual exploitation of a minor through a social media platform. The applicant, arrayed as the third accused, had earlier been arrested in another State and granted transit bail with a direction to surrender before the investigating officer. Instead, he approached the High Court seeking anticipatory bail. The Court held that a person who has already been arrested and released on transit bail cannot maintain an application for pre-arrest bail, and that the appropriate remedy is to surrender before the jurisdictional court or seek regular bail.

The application was filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 seeking pre-arrest bail. The applicant was arrayed as Accused No.3 in a crime registered by the Cyber Crime Police Station, Thiruvananthapuram City, for offences punishable under Sections 78(1)(ii) read with 3(5) of the Bharatiya Nyaya Sanhita, 2023, Section 67B of the Information Technology Act, 2000, and Sections 14 and 13 of the Protection of Children from Sexual Offences Act, 2012.

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According to the prosecution, a 12-year-old girl downloaded a social media application using her father’s mobile phone and interacted with multiple users. It was alleged that one user persuaded her to share indecent images and that other accounts, allegedly operated by the accused including the applicant, were involved in similar interactions.

The applicant was arrested in Jammu and Kashmir and produced before the Fast Track Court (PoCSO Cases), Jammu. He was granted transit bail for 15 days with a direction to surrender before the investigating officer in Thiruvananthapuram. Instead of surrendering, he approached the High Court seeking pre-arrest bail.

The applicant contended that he was innocent, falsely implicated, and that no material connected him to the crime. He submitted that his electronic device had already been surrendered and custodial interrogation was unnecessary. The Senior Public Prosecutor and the Amicus Curiae contended that the application was not maintainable since the applicant had already been arrested and released on transit bail.

The Court stated, “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.” It further observed, “The purpose of such a provision is to safeguard individuals from the possibility of being arrested with malicious intent.”

The Court recorded, “Therefore, pre-arrest bail must be sought before an arrest is made.” It clarified, “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.”

With reference to the earlier arrest and transit bail, the Court observed, “The dictum laid down in Priya Indoria (supra) does not apply to a case where the accused has already been arrested.” It further stated, “Once arrested, the only remedy for him would be to seek regular bail; release on transit bail makes no difference.”

Referring to the Gauhati High Court decision in Kamal Sabharwal v. State of Assam and Another, the Court noted that it was held that an application for pre-arrest bail is not maintainable once a person is already arrested and released on transit bail, and that the only option left is to appear before the jurisdictional court and seek regular bail.

The Court concluded, “For the reasons stated above, I am of the view that the application for pre-arrest bail is not maintainable and the remedy open to the applicant is either to surrender before the investigating officer or to appear before the jurisdictional court and seek regular bail.” It also stated, “That apart, I must say that the applicant, on merits also, cannot invoke the extraordinary discretionary jurisdiction vested with this Court inasmuch as he has failed to comply with the direction in Annexure A4 order.”

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The Court recorded, “For the reasons stated above, I am of the view that the application for pre-arrest bail is not maintainable and the remedy open to the applicant is either to surrender before the investigating officer or to appear before the jurisdictional court and seek regular bail. That apart, I must say that the applicant, on merits also, cannot invoke the extraordinary discretionary jurisdiction vested with this Court inasmuch as he has failed to comply with the direction in Annexure A4 order.  The bail application is, accordingly, dismissed.” It also placed on record that it appreciated the assistance rendered by the learned Amicus Curiae.

Advocates Representing the Parties:

For the Petitioners: Sri. R.S. Lakshman, Sri. Pranav Krishna

For the Respondents: Sri. M.C. Ashi, Senior Public Prosecutor; Sri. S. Rajeev, Amicus Curiae

Case Title: Pankaj Kumar v. State of Kerala
Neutral Citation: 2026: KER:12649
Case Number: Bail Appl. No. 13662 of 2025
Bench: Justice Kausar Edappagath