Cri. Misc. Second Bail Appln. No.783 of 2005

1st April, 2005

Petitioner Counsel: R. S. RATHORE
Respondent Counsel: S. R. BAJWA,V. R. BAJWA, BIRI SINGH , SURESH SAHNI, MOHD. RAFIQ

Cases Cited:
Gurubaksh Singh Sibbia Vs. State of Punjab, (1980)2 SCC 565 [Para PARA5,18,20,22]
Suresh Chand Vs. State of Rajasthan, 2001 ALL MR (Cri) 775 (S.C.)=2001(2) RLR 757 [Para 6,21]
Mithu Vs. State of Rajasthan, 2001 ALL MR (Cri) 736 (S.C.)=2000 Cri LR (Raj) 483 [Para 6]
Maya Rani Guin Vs. State of West Bengal, 2003 Cri.L.J. 1 [Para PARA6]
Pawan Kumar Beriwal Vs. State of West Bengal, 1998(4) Crimes 246 [Para PARA6]
Ekkari Ghosh alias Jitendra Vs. State, 1994(4) Crimes 2655 [Para PARA6]
Kalidas Mitra Vs. State, (1989)3 Crimes 652 [Para PARA6]
Ramgopal Vs. State of Rajasthan, 1983 Cri LR (Raj) 217 [Para PARA7]
Nahar Singh Vs. State of Raj., 1983 Raj LR 88 [Para PARA7]
Yad Ram Vs. State, 1988 RCC 267 [Para PARA7]
Bhagwan Singh Vs. State, 1990 RCC 565 [Para PARA7]
Bhag Singh Vs. State of Raj., 1991 RCC 95 [Para PARA7]
Gandhi Vs. State of A. P., 1991(3) Crimes 796 [Para PARA7]
Islam Mohammed Vs. State of Raj., 1994 RCC 207 [Para PARA7]
Munni Devi Vs. State of Raj., SB Cr. Misc. II Bail Appln. No.2964/2003 Dt.24-09-2003 [Para PARA7]
Vishnu Nath Mathur Vs. State of Rajasthan, 2004(1) R Cr D (Raj) 63 [Para PARA7]
Babu Lal Vs. State of Rajasthan, 2004(3) R Cr D 504 (Raj) [Para PARA7]
R. S. Joshi Vs. Ajit Mills Ltd., (1977)4 SCC 98 : AIR 1977 SC 2279 [Para PARA9]
Maharashtra State Board of Secondary Education Vs. Paritosh Bhupesh Kumar Seth, (1984)4 SCC 27 : AIR 1984 SC 1543 [Para PARA9]
Easland Combines Coimbatore Vs. Collector of Central Excise, (2003)3 SCC 410 : AIR 2003 SC 843 [Para PARA10]
Nasiruddin Vs. Sita Ram, (2003)2 SCC 577 : AIR 2003 SC 1543 [Para PARA10]
Hari Singh Mann Vs. Har Bhajan Singh Bagwan, (2001)1 SCC 169 [Para PARA11]
Kalyan Chandra Sarkar Vs. Rajesh Ranjan alias Pappu Yadav, 2005(1) Apex Decisions (SC) 640 [Para PARA19,24,25]

JUDGMENT

-SHIV KUMAR SHARMA, J.:- Precise question that has been referred to us for consideration is:-

"Whether second or subsequent bail application under Section 438 Cr.P.C. is maintainable or not?"

2. In our endeavour to answer the question, we may begin with noticing that provision of anticipatory bail was introduced for the first time in the Code of Criminal Procedure, 1973. Under the old Code 1898 there was no such provision. There were conflicting decisions of the High Courts. Some of the High Courts took the view that bail could be granted to a person against whom a report of an offence was made even though he was neither arrested nor detained and even in a case where a person was suspected of an offence for which he might be arrested by a police officer but the majority of the High Courts held that not to speak of Sessions Judge even High Court did not have inherent power to grant anticipatory bail by invoking 561-A of the old Code. However, Law Commission in the 41st report advocated the granting of power of anticipatory bail to "Superior Courts. " In its 48th report the Law Commission again endorsed the view expressed in the 41st report and Clause 447 of the Code of Criminal Procedure Bill 1970 for the first time provided the provision of anticipatory bail thus :-

"As recommended by the Commission, new provision is being made enabling the Superior Courts to grant anticipatory bail i.e. a direction to release a person on bail issued even before the person is arrested with a view to avoid the possibility of the person hampering the investigation special provision is being made that the Court granting anticipatory bail may impose such conditions as it thinks fit. These conditions may be that a person shall make himself available to the Investigating Officer as and when required and shall not do anything to hamper investigation."

It was observed by the Law Commission in its 48th report thus :-

"31. The Bill introduces a provision of the grant of anticipatory bail. This is substantially in accordance with the recommendation made by the previous Commission (41st report). We agree that this would be a useful addition, though we must add that it is very exceptional cases that such be exercised.

We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the public prosecutor. The initial order should only be an interim one. Further the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the Court is satisfied that such a direction is necessary in the interest of justice ........."

3. The Bill was referred to the Joint Committee of the Parliament, which made following observations:-

"The Committee is of the opinion that certain specific conditions for the grant of anticipatory bail should be laid down in the clause itself for being complied with before the anticipatory bail is granted. The clause has been amended accordingly ."

4. The clause so amended (clause 436) was enacted as Section 438 of the Code of Criminal Procedure 1973. Section 438 reads as under:-

"438. Direction of grant of bail to person apprehending arrest:

(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for direction under this section, and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, at it may think fit, including :-

(i) a condition that the person shall make himself available for interrogation by a police as and when required;

(ii) a condition that the person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

(iii) a condition that the person shall not leave India without previous permission of the Court;

(iv) Such other conditions as may be imposed under sub-section (3) of Section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity, with the direction of the Court under Sub-Section (1)."

5. Bench of Hon'ble Five Judges of Supreme Court in Gurubaksh Singh Sibbia Vs. State of Punjab (1980)2 SCC 565 had occasion to examine the amplitude of judicial discretion given by Section 438, Cr.P.C. and various other factors related to this provision. Their Lordships initiated that an anticipatory bail is pre arrest legal process which directs that if, the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. A direction under Section 438 is thereafter intend to confer conditional immunity from the 'touch' or confinement contemplated by Section 46 of Cr.P.C. It was further observed that in order to meet the challenge of Art.21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in support of which he seeks bail. Since denial of bail amounts to deprivation of personal liberty, the Court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when not imposed by the legislature. An over generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. The principles pronounced by the Constitution Bench may be summarized thus para 35-40, of Cri.L.J.:-

"(i) The use of the expression 'reason to believe' in Section 438(1) shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not belief. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. Such belief must be capable of being examined by the Court objectively, because it is then alone that the Court can determine whether the applicant has reason to believe that he may be arrested. Specific events and facts must be disclosed by the applicant in order to enable the Court to judge of the reasonableness of his belief. (Paras 35,40 41).

A blanket order i.e. an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity in fact any eventuality, likely or unlikely regarding which, no concrete information can possibly be had, should not generally be passed. Such a blanket order is bound to cause serious interference with the functions of the police . (Paras 40 and 41).

(ii) If an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out granting such relief. It cannot leave the question for the decision of the Magistrate concerned under Section 437 of the Code, as and when an occasion arises. (Para 36)

(iii) The filing of an FIR is not a condition precedent to the exercise of the power under Section 438. (Para 37)

(iv) Anticipatory bail can be granted even after an FIR is filed, so long as the applicant has not been arrested. (Para 38)

(v) The provisions of Section 438 cannot be invoked after the arrest of the accused. (Para 39)

(vi) An order of bail can be passed under Section 438(1) without notice to the Public Prosecutor. But notice should issue to the Public Prosecutor or the Government Advocate forthwith and the question of bail should be re-examined in the light of the respective contentions of the parties. The ad interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage (Para 42)

(vii) Regarding time limit, if any, for anticipatory bail the Court may, if there are reasons for doing so, limit the operation of the order to short period until after the filing of an FIR in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the FIR as aforesaid. But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time. (Para 42)"

6. In the following cases second anticipatory bail application in respect of same cases, was held not maintainable :-

(i) In Suresh Chand Vs. State of Rajasthan, 2001(2) RLR 757, it was held that after rejection of first bail application under Section 438, Cr.P.C. by the High Court, second anticipatory bail application was not maintainable. The single Judge indicated that the power to grant anticipatory bail does not flow from Art.21 of the Constitution of India but it has been conferred by the statute enacted by the Parliament and the Parliament can, by amending the Code of Criminal Procedure or by enacting special law take it away also. Even this provision can be omitted by the State Amendment and such amendment will not have the effect of depriving a person of his personal liberty. It was further observed that the Law Commission intended that the provisions of anticipatory bail should not be put to abuse at the instance of unscrupulous petitioners and this extraordinary remedy has to be resorted to only in exceptional cases.

(ii) In Mithu Vs. State of Rajasthan, 2000 Cri LR (Raj) 483, maintainability of second anticipatory bail application was considered and it was pointed out that after rejection of bail under Section 438, Cr.P.C. by the High Court, second application was not competent.

(iii) Full Bench of Calcutta High Court in Maya Rani Guin Vs. State of West Bengal, 2003 Cri.L.J. 1, indicated that entertaining a second application for anticipatory bail would amount to review or reconsideration of the earlier order passed by a Division Bench having coordinate jurisdiction, as the accusation remains unchanged. The accusation being the sine qua non and which remains the same, there cannot be any revival of "reasons to believe" or apprehension of arrest which was considered by Court in the earlier application for anticipatory bail. Thus, the second application for anticipatory bail, even if new circumstances develop after rejection or disposal of the earlier application, is not maintainable.

(iv) This view was reiterated in Pawan Kumar Beriwal Vs. State of West Bengal 1998(4) Crimes 246, Ekkari Ghosh alias Jitendra Vs. State, 1994(4) Crimes 2655 and Kalidas Mitra Vs. State (1989)3 Crimes 652.

7. But in the following cases second anticipatory bail application under Section 438, Cr.P.C. was found to be maintainable:-

(i) In Ramgopal Vs. State of Rajasthan, 1983 Cri LR (Raj) 217, learned Single Judge of this Court held that the second bail application should not be entertained in routine, but if there are some circumstances which were not before the Court when the earlier bail application was rejected or some additional grounds or there are some further development and different considerations and if some more details are available at a later stage the second bail application is maintainable.

(ii) In Nahar Singh Vs. State of Raj., 1983 Raj LR 88, learned Single Judge, after rejection of three previous bail applications under Section 438, Cr.P.C. granted 4th anticipatory bail application on the ground that the petitioner was suffering from hypertension and chest pain and admitted to the hospital.

(iii) In Yad Ram Vs. State (1988 RCC 267), Single Bench of this Court granted second anticipatory bail application on the ground that the petitioners were teachers and the death of deceased occurred after four days of incident due to head injury and none of the injuries ascribed to the petitioners on the head of the deceased.

(iv) In Bhagwan Singh Vs. State (1990 RCC 565), second anticipatory bail application was granted on the ground that while rejecting first bail application the petitioner was directed to appear before the Investigating Officer for interrogation but no active steps were taken either to arrest the petitioner or to obtain a search warrant for making seizure of the remaining articles alleged to have been misappropriated by the petitioner.

(v) In Bhag Singh Vs. State of Raj. (1991 RCC 95), the petitioner a Sarpanch was charged under Section 409, IPC for embezzlement of money. Since the case diary was not furnished despite two opportunities, the anticipatory bail was granted.

(vi) Andhra Pradesh High Court in Gandhi Vs. State of A. P. (1991(3) Crimes 796), held that second application for anticipatory bail was not barred.

(vii) In Islam Mohammed Vs. State of Raj. (1994 RCC 207), second anticipatory bail application moved on new facts in regard to incident of 1984 for which the investigation was still pending, was granted.

(viii) In Smt. Munni Devi Vs. State of Raj. (SB Cr. Misc. II Bail Appln. No.2964/2003 decided on Sept. 24, 2003), the second anticipatory bail application filed along with certain documents was allowed.

(ix) In Vishnu Nath Mathur Vs. State of Rajasthan (2004(1) R Cr D (Raj) 63), second anticipatory bail application was allowed on medical ground.

(x) In Babu Lal Vs. State of Rajasthan (2004(3) R Cr D 504 (Raj)), it was held that second anticipatory bail application was maintainable on the basis of new facts and changed circumstances.

8. Learned counsel for the petitioners urged that there is no bar in entertaining a second anticipatory bail application and the same is maintainable because neither the Legislature in its wisdom had so provided under Section 438, Cr.P.C. nor any Court has so laid down in its decision. According to learned counsel there is a risk in foreclosing filing of second application because life throws open unforeseen possibilities and offers new challenges, therefore it is safe to have judicial discretion free to be able to take such possibilities in its stride and to meet such challenges. After rejection of first application the situation may crop up where filing of second application becomes necessary. It would be therefore just and proper to allow filing of second application.

9. Refusing the contentions learned Additional Advocate General canvassed that bar in filing second bail application is very much available under Section 438, Cr.P.C. which seeks to carve out an exception from the regular mode of grant of bail and to some extent makes a transgression into the freedom of investigating agency. When on consideration of an application of accused who has reason to believe that he may be arrested on accusation of having committed a non-bailable offence and the Court on judicial security has rejected the first bail application of such accused, the accusation and the reason to believe that accused entertains on that basis, would always remain unchanged even though in subsequent bail application the ground for making such application may undergo charge. The provision of Section 438 cannot therefore be interpreted to hold that second or subsequent bail application is maintainable merely on the basis that such an interpretation would lead to hardship in one out of thousand cases. It is next canvassed on behalf of the State that Legislature frames the law in order to cover the generality of cases and not the cases which are isolated in considerations, constitutionality of the provisions of such an enactment would also not to be open to challenge. Reliance is placed on R. S. Joshi Vs. Ajit Mills Ltd. (1977)4 SCC 98 and Maharashtra State Board of Secondary Education Vs. Paritosh Bhupesh Kumar Seth (1984)4 SCC 27, wherein the Apex Court held that a law is to be adjudged for its constitutionality by the generality of cases it covers not by the freaks and exception it martyrs.

10. It is further contended by the learned Additional Advocate General that merely because a law causes hardship, it cannot be interpreted in a manner so as to defeat its object. The Courts are not concerned with the legislative policy or with the result, whether injurious or otherwise, by giving effect to the language used nor is the function of the Court where the meaning is clear not to give effect to it merely because it would lead to some hardship. The Court is not required to interpret a statutory provision which is plain and unambiguous in a different manner only because of the harsh consequence would arise therefrom. Reliance is placed on Easland Combines Coimbatore Vs. Collector of Central Excise (2003)3 SCC 410 and Nasiruddin Vs. Sita Ram (2003)2 SCC 577.

11. Learned Additional Advocate General next contended that filing of second bail application under Section 438, Cr.P.C. by citing changed circumstances, subsequent development, some more details, further considerations and some additional grounds, is not permissible as there is no such warrant on the language of the said section. It only grants one time right to the accused person and once this right is exercised it gets exhausted. The only option being available to the accused is to approach the High Court after rejection of his bail application by Sessions Judge. When application is rejected by the Sessions Judge, second application before the Sessions Judge is not maintainable and similarly upon rejection of the first application by the High Court second application before the High Court would not be maintainable. The order granting orrefusing to grant anticipatory bail application is a final order and entertainment of second application essentially require a review of the earlier order. Such a completely (sic) barred by the provisions contained in Section 362, Cr.P.C. Reliance is placed on Hari Singh Mann Vs. Har Bhajan Singh Bagwan (2001)1 SCC 169.

12. We have pondered over the submissions and scanned the case law.

13. While incorporating Section 438 in the Code of Criminal Procedure the Law Commission intended that this extraordinary remedy had to be resorted to only in exceptional cases and these provisions should not be put to abuse at the instance of unscrupulous petitioners. A close look at Section 438, Cr.P.C. demonstrates that grant of anticipatory bail is a matter of judicial discretion and the Court must be satisfied that a fit case had been made out for exercise of such discretion. The Court has to make an effort to strike a balance between the individual's right to personal freedom and the investigational rights of the police. The provisions of Section 438, Cr.P.C. are not to be applied mechanically. The phraseology if it thinks fit available in the body of the section reading with sub-section (2) thereof is indicative enough that such order on the face of it must show the reasons for granting anticipatory bail. Sub-section (1) of Section 438, Cr.P.C. provides thus :

"When any person has reason to believe that he may be arrested on an accusation of having committed a non bailable offence, he may apply to the High Court or the Court of Session for a direction under this section, and that Court may, if it thinks fit direct that in the event of such arrest he shall be released on bail."(Emphasis supplied)

14. By the use of the word "or" in sub-section (1) of Section 438, the Legislature has invested the Court of Session and the High Court with concurrent jurisdiction. If the accused makes an application for anticipatory bail to the Sessions Judge and that application is rejected, he can make a subsequent application to the High Court. But is there any remedy available to the accused after the High Court dismisses anticipatory bail application?

15. We earlier noticed few judgments wherein it was held that since accusation remains unchanged, there cannot be any revival of "reasons to believe" or apprehension of arrest which was considered by the High Court in the earlier application for anticipatory bail. Therefore the second application for anticipatory bail, even if new circumstances develop after rejection or disposal of the earlier application, is not maintainable.

16. The other view is that if there are some circumstances which were not before the Court when the first anticipatory bail application was rejected or some additional grounds or there are further development and different considerations and if some more details are available at a later stage, the second bail application is maintainable.

17. Having scanned the language of Sections 438 and 439, Cr.P.C. we find that there is no substantial difference between Sections 438 and 439, as regards the appreciation of the case as to whether or not a bail is to be granted. The only distinction is that in a cases under Section 438, the person who approaches the Court apprehends that he may be arrested without any basis whereas under Section 439, such person approaches the Court after his arrest. Evidently the power to grant anticipatory bail does not flow from Art.21 of the Constitution but it has been conferred by the Statute enacted by the Parliament whereas provisions contained in Section 439 flow from Art.21 of the Constitution of India. If bail applications of the accused under Section 439 is dismissed once, he can move second and successive bail application on the ground of substantial change in factual situation between the earlier bail application and the subsequent one, but filing of second and successive bail applications on the basis of new argument and new twists on the same facts cannot be encouraged. Speedy trial is a Constitutional right of the accused provided to him by Article 21 of the Constitution. If first application of the accused who is in custody is dismissed on merits and the trial is delayed, the accused has a right to make second bail application on the ground of delayed trial. Section 439 relates to Constitutional right of the accused whereas Section 438 to his statutory right. The provisions of Section 438 should not be put to abuse at the instance of unscrupulous accused.

18. Interpreting Section 438(1), Cr.P.C. the Constitution Bench of Apex Court in Gurbaksh Singh Vs. State of Punjab (supra) indicated thus:-

"Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has "reason to believe" that he may be arrested for a non-bailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be arrested must be founded on reasonable grounds. Mere 'fear' is not belief for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively, because it is then alone that the Court can determine whether the applicant has reason to believe that he may be arrested. Section 438(1) therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applicants for anticipatory bail will be, as large as at any rate, the adult populace. Anticipatory bail is a device to secure the individual's liberty, it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely."

19. Very recently considering the liberty of an individual the Apex Court in Kalyan Chandra Sarkar Vs. Rajesh Ranjan alias Pappu Yadav (2005(I) Apex Decisions (SC) 640) propounded thus at para 17, page 949 of Cri.L.J. :-

"It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Art.21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country a person accused of offences which are non-bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Art.21 since the same is authorized by law. But even persons accused of non-bailable offences are entitled for bail if the Court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and or if the Court is satisfied for reasons to be recorded that in spite of the existence of prima facie case there is a need to release such persons on bail where fact situations require it to do so. In that process a person whose application of enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In such cases if the circumstances then prevailing requires that such persons to be released on bail, in spite of his earlier applications being rejected, the Courts can do so".

Their Lordships further observed in para 18 as under :-

".......Ordinarily, the issues which had been canvassed earlier would not be permitted to be re-agitated on the same grounds, as it would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting."

In para 19 it was indicated thus :-

"..................... Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done 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."(Emphasis supplied)

20. Can a formula be devised conferring the power of granting anticipatory bail in strait jacket?

Answering this question in negative, the Constitution Bench in Gurubaksh Singh Vs. State of Punjab (supra) observed that while laying down cast iron rules in a matter like granting anticipatory bail, it is apt to be overlooked that even Judges can have but an imperfect awareness of the needs of new situation. Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions and it will be strange if by employing judicial artifices and techniques, discretion conferred upon the Courts is cut down by devising a strait jacket formula.

21. In Suresh Chand Vs. State of Rajasthan (supra) Single Bench of this Court held that after dismissal of first bail application under Section 438 Cr. P. C. by the High Court, the accused is not entitled to ask for the same relief again by making second anticipatory bail application as the accusation against the accused remains the same. Once anticipatory bail is denied it cannot be made again on the basis of new arguments and new twists. Fact situation in respect of accusation of non-bailable offence only changes with the filing of final report by the Investigating Officer under Section 169 Cr.P.C. and not before and when fact situation in respect of accusation is changed and final report is filed there is no need of seeking anticipatory bail because in that event the Investigating Officer may release the accused on his executing a personal bond with or without sureties.

22. The above observations appear to have been made in reposing utmost faith in the Investigating Agency. But this eventuality escaped attention as to what would happen if the Investigating Officer despite change in fact situation does not file final report. Possibility of causing needless inconvenience harassment and humiliation to the accused by the police in such a situation cannot be ruled out. Again coming to Gurbaksh Singh Vs. State of Punjab (supra) we notice that the Supreme Court narrated the situation and contingencies for invoking power under Section 438. In para 8 of the judgment it was indicated thus :-

"No one can accuse the police of possessing a healing touch nor indeed does anyone have misgivings in regard to constraints consequent upon confinement in police custody. But, society has come to accept and acquiesce in all that follows upon a police arrest with a certain amount of sang-froid, in so far as the ordinary rule of criminal investigation is concerned. It is the normal day-to-day business of the police to investigate into charges brought before them and broadly and generally, they have nothing to gain, not favours at any rate, by subjecting ordinary criminals to needless harassment. But the crimes, the criminals and even the complainants can occasionally possess extraordinary features. When the even flow of the life becomes turbid, the police can be called upon to inquire into charges arising out of political antagonism. The powerful processes of criminal law can then be perverted for achieving extraneous ends. Attendant upon such investigations, when the police are not free agents within their sphere of duty, is a great amount of inconvenience, harassment and humiliation. That can even take the form of the parading of a respectable person in hand-cuffs, apparently on way to a Court of Justice. The foul deed is done when an adversary, is exposed to social ridicule and obloquy, no matter when and whether a conviction is secured or is at all possible. It is in order to meet such situations, though not limited to these contingencies, that the power to grant anticipatory bail was introduced into the Code of 1973."

23. While exercising powers under Section 438 the Court is duty bound to strike a balance between the individual's right to personal freedom and the investigational right of the police. But the provisions of anticipatory bail should not be put to abuse at the instance of unscrupulous petitioners.

24. The argument of learned Additional Advocate General that the filing of successive bail applications is barred by Section 362, has no merit. The principles of res-judicata and such analogous principles are not applicable in criminal proceeding (vide Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav (supra)).

25. In the ultimate analysis, placing reliance on the ratio indicated in Kalyan Chandra Sarkar's case (supra), we hold that 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. Under no circumstances the second or successive anticipatory bail application shall be entertained by the Sessions Judge/Additional Sessions Judge.

26. The reference is answered accordingly. Let the matter be placed before the appropriate Bench.

Order accordingly.