Calcutta High Court
Maya Rani Guin And Etc. vs State Of West Bengal on 30 July, 2002
Equivalent citations: 2003(2)ALD(CRI)1, 2003CRILJ1
JUDGMENT M.H.S. Ansari, J.
1. Present reference to this Bench has been made by an order dated January 28, 2000 passed by a Division Bench of this Court, as there was difference of opinion between the two learned Judges.
2. Briefly stated, facts leading to the present reference and the questions as framed by the Division Bench, are as under :
On an application under Section 438, Cr. P.C. filed by the petitioners-Maya Rani Guin and another, this High Court granted anticipatory bail on September 16, 1999 on certain conditions. It was further directed that such order of anticipatory bail would remain operative for a period of three weeks from the date of passing such order subject to the decision of the Supreme Court in the case of K.L. Verma v. State, 1997 Cal Cri LR (SC) 88. It was further directed by this Court that if any application for bail was thereafter made by the petitioners before the appropriate Court under Section 437/439, Cr. P.C. the same would be disposed of by such Court in accordance with law.
3. After such anticipatory bail was granted by this Court, the petitioners surrendered before the learned Sub-Divisional Judicial Magistrate on October 1, 1999 and made a prayer for bail. The learned Magistrate by his order dated October 1, 1999 rejected the prayer for regular bail. They were, however, not taken into custody and were given 15 days' time to obtain necessary order of bail from 'the upper Forum'.
4. The petitioners thereafter filed an application for bail before a Division Bench of this Court (Corum. Burman Roy and Sengupta, JJ.) under Section 439, Cr. P.C. The petitioners were not in custody. In course of hearing of the said bail application, a question cropped up as to whether an application for regular bail under Section 439, Cr. P.C. was maintainable at the instance of a person who was not in custody. There was no difference of opinion between the two learned Judges and it was held that regular bail cannot be granted to the petitioners, who are not in custody, under Section 439, Cr. P.C. But there was difference of opinion as regards the remedy available to the accused-petitioners in such circumstances. Justice Burman Roy was of the view that the only reasonable interpretation of the observations made by the Supreme Court in K.L. Verma's case with respect to grant of time to an accused, where the prayer for regular bail is rejected, to move the superior Court, is that the accused has to move the superior Court again under Section 438, Cr. P.C. within the stipulated period after rejection of the prayer for regular bail. Sengupta, J. for the reasons stated in his judgment, however, did not agree with the said view of Burman Roy, J. Sengupta, J, was of the view that since an order of rejection of regular bail by the learned Magistrate is a judicial order passed in a judicial proceeding, the same is amenable to revisional jurisdiction of the Superior Court (High Court or a Court of Session) or inherent jurisdiction under Section 482, Cr. P.C. (in respect of High Court only). Therefore, Sengupta, J. held that in such circumstances the Court of revision can take notice of the earlier order of anticipatory bail granted to the revisionist and stay the operation of the order rejecting prayer for regular bail. So far as the High Court is concerned its exercise of power under Section 482 Cr. P.C., is far wide and is clearly magnified by the expression "................to make such orders as may be necessary to give effect to any order under the Code."
5. It is because of the said difference of opinion between the two learned Judges as stated above, the matter was referred to the larger Bench.
6. The following questions have been framed by the Division Bench and referred to the larger Bench for adjudication.
"(i) Whether second application for anticipatory bail Under Section 438, Cr. P.C. is totally barred even if new circumstances develop after rejection or disposal of an earlier application for anticipatory bail?
(ii) Whether petitioners can file a fresh application Under Section 438 of the Code and whether same will be maintainable in the circumstances of the case and in view of the following observations/directions of the Apex Court in K.L. Verma's case (supra) :
"As far as the order of 9-10-96 is concerned, since it proceeds on a misreading of Salauddin's case, we modify the order by directing that anticipatory bail will enure till the regular Court decides the question of grant of bail and for a week thereafter, so that if the regular Court refuses bail, the accused person can, if so advised, move the higher Court?"
(iii) What is the exact nature of the remedy available to the petitioners in the circumstances of the case and in view of the last direction given by the Apex Court in the above-quoted observations, namely : ".................the accused person can, if so advised, move the higher Court"? What was the exact remedy contemplated by the Supreme Court in the above-quoted observations?
(iv) Whether it was the intention of the Supreme Court in the above-quoted observations that in the similar circumstances of the instant case, High Court should invoke its inherent/revisional jurisdiction and examine the correctness of the order of the Magistrate refusing bail to the petitioners on merit irrespective of whether such order discloses good reasons therefor or not and may in an appropriate case remand back the case again to the Magistrate for consideration of the bail prayer of the petitioners afresh? Further can we reject similar application on merit if it is found that order by which Magistrate rejected the prayer for bail discloses good reasons therefor particularly when it is our opinion that we cannot grant bail or anticipatory bail under the circumstances of the case?
(v) Whether this petition is at all maintainable or whether some relief can still be granted to the petitioners by suo motu invoking our inherent/revisional jurisdiction?"
7. Mr. Dilip Kumar Dutta, learned advocate appearing for the petitioner in C.R.M. No. 2135 of 2001 (In re : Darshana D. Taunk) submits that there is no restriction imposed in Section 438, Cr. P.C. on the power of the Court to entertain more than one application for anticipatory bail. However, Mr. Dutt points out, in the case of Ekkari Ghosh alias Jitendra v. State, reported in 1994 Cal Cri LR (Cal) 218, it was held by the Division Bench of this Court that a second application for anticipatory bail even on new ground, is not maintainable. The Division Bench did not find any reason to differ from the decision rendered by another Division Bench in the case of Kalidas Mitra v. State, reported in (1989) 3 Crimes 652, wherein it was held by that Division Bench of this Court that a second application even on new grounds, is not maintainable. It was observed in the case of Kalidas Mitra (supra) that there will be constant death and reinforcement of the claims, if second application is entertained."
8. Mr. Dutt refers to another Division Bench judgment of this Court, reported in 2001 (1) Cal LJ 191 (Anil Kumar Agarwala v. The State), wherein it was held that in certain circumstances a second application under Section 438, Cr. P.C. seeking similar relief is maintainable. The Division Bench did not rule out absolutely the maintainability of second application on further materials, but dismissed the application on merit.
9. Mr. Dutt also refers to the decision of the Supreme Court, (Gurbaksh Singh Sibbia v. State of Punjab). But in our considered view the said judgment is of no assistance insofar as first point under consideration in the present reference is concerned as nowhere in its said judgment the Supreme Court has dealt with the point regarding maintainability of a second application for anticipatory bail under Section 438, Cr. P.C.
10. Mr. Dutt also refers to the decision reported in 1999 Cal Cri LR (Cal) 249 (Smt. Bijali Shat v. State of West Bengal). But in our view the said judgment has no material bearing insofar as the present reference is concerned. In that case, the point which fell for consideration before the Division Bench of this Court was whether the petitioners were entitled to anticipatory bail without limiting any period of time. Relying upon the judgment of the Apex Court in the case of Gurbaksh Singh Sibbia (1980 Cri LJ 1125), it was held by the Division Bench of this Court that the petition for anticipatory bail should be allowed without limiting any period of time during which such order should remain operative.
11. Mr. Ganesh Srivastava, learned Advocate appearing for the petitioners in C.R.M. No. 4915 of 1999 (Smt. Maya Rani, Guin v. The State of West Bengal) submits that in view of the scope and the object for which Section 438, Cr. P.C. was introduced as laid down in Gurbaksh Singh Sibbia's case by the Constitution Bench of the Supreme Court that wide and unfettered judicial discretion vested in the Sessions Judge and the High Court, should not be narrowed down, curtailed, limited and/or impeded by reading words in the Section or by judicial interpretation.
12. It is submitted by Mr. Srivastava that there may arise such a situation when second application for anticipatory bail may be very much essential for a person for the ends of justice and to meet such contingency the scope of Section 438, Cr. P.C. with regard to maintainability of the second application for anticipatory bail after rejection of the first application, should not be fettered. But we are unable to accept such contention. The observation of the Supreme Court in the case of Gurbaksh Singh Sibbia (1980 Cri LJ 1125) (supra) as referred to by Mr. Srivastava and cited supra, was made by the Supreme Court in a different context, which will be clear from paragraph 13 of the aid judgment, which reads as follows :
"The controversy, therefore, is not whether the Court has the power to impose conditions while granting anticipatory bail. It clearly and expressly has that power. The true question is whether by a process of construction, the amplitude of judicial discretion which is given to the High Court and the Court of Session, to impose such conditions as they may think fit while granting anticipatory bail, should be cut down by reading into the statute, conditions which are not to be found therein, like those evolved by the High Court or canvassed by the learned Additional Solicitor General. Our answer, clearly and emphatically, is in the negative. The High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant."
13. It is submitted by Mr. Srivastava that the proposition of law laid down in the Division Bench judgment of this Court, reported in 1999 Cal Cri LR (Cal) 485 (Chanchal Dutta v. State), wherein it was held that second application for anticipatory ball on any ground whatsoever is not maintainable after rejection of the first application, cannot be considered to be a correct proposition in view of the judgment of the Supreme Court in the case of Gurbaksh Singh Sibbia (1980 Cri LJ 1125) (supra).
14. The other decisions referred to by Mr. Srivastava, viz. 1989 (3) Crimes 652 (Kalidas Mitra v. State), 1994 Cal Cal LR (Cal) 218 (Ekkari Ghosh v. State), 2001 (1) Cri LJ 191 (Anil Kumar Agarwala v. State), have already been dealt with by us hereinabove as those were referred to by Mr. Dutt in course of his argument. So further discussion on those decisions is not considered necessary.
15. Mr. Srivastava concludes his argument by submitting that second application for anticipatory bail should be maintainable but in exceptional circumstances to be disclosed in the petition. Maintainability of such second application based upon such exceptional circumstances should be left to the judicial discretion of the Court while considering the second application.
16. Mr. Sudipta Moitra, learned Additional Public Prosecutor appearing for the State submits that second application, even on new or changed circumstances, cannot be maintainable. Mr. Moitra further submits that Section 438, Cr. P. C. gives right to a party to make a prayer for anticipatory bail when he reasonably apprehends that he may be arrested on an accusation of having committed a non-bailable offence. According to Mr. Moitra this particular 'accusation' does not suffer from any change/variation from time to time and the new grounds cannot strengthen such 'accusation'. Even if there is change in the circumstances, this 'accusation' remains the same that is to say, as it is. It is further submitted by Mr. Moitra that the scope of Section 438. Cr. P. C. is very limited in comparison to that of Section 439, Cr. P. C., which is unlimited in its scope and application. An accused can repeat his prayer for bail under Section 439. Cr. P. C. on new grounds after rejection of his earlier prayer for bail. The very language in Section 439, Cr. P. C. "that any person accused of an offence and in custody be released on bail", clearly suggest that the accused in custody has a legitimate right to renew his prayer for bail at any and various stage/s. Bill such right is not available and cannot, therefore, be availed of by a person who is not in custody. According to Mr. Moitra while drafting Section 438, Cr. P. C., the Legislature skilfully omitted the expression as appearing in Section 439. Cr. P. C.
17. It is further submitted by Mr. Moitra that Section 438, Cr. P. C. gives right to a person to pray for anticipatory bail if such person has "reason to believe" that he may be arrested on an accusation of having committed a non-bailable offence. According to Mr. Moitra there cannot be any revival of "reason to believe" of apprehension of arrest in a subsequent application when the earlier application was rejected.
18. Mr. Moitra finally submits that there is no reason to differ from the earlier Division Bench judgments of this Court, wherein it has been repeatedly held that a second application for anticipatory bail, even on new ground, cannot be maintainable.
19. Learned, Public Prosecutor Mr. Kazi Saifullah supported the contentions advanced by Mr. Moitra, Ld. Additional Public Prosecutor, it was his submission that the distinction between the anticipatory bail and regular bail are clear and distinct. That a second application for anticipatory bail is not maintainable as it would amount to review of the earlier order which is not permissible.
20. We have heard the learned advocates for the respective parties. We have also gone through the judgments referred to above. We find sufficient merit in the submission of Mr. Kazi Saifullah. Ld. Public Prosecutor and Mr. Moitra, learned Additional Public Prosecutor. We do not find any reason to differ from views of the earlier Division Benches in the case of Kalidas Mitra (1989) 3 Crimes 652, Ekkari Ghosh, 1994 Cal Cri LR (Cal) 218 and the case of Pawan Kumar Beriwal, 1998 (1) Cal LJ. 470, and are in respectful agreement with the views expressed therein. We are of the view that entertaining a second application for anticipatory bail would amount to review or reconsideration of the earlier order passed by a Division Bench having co-ordinate jurisdiction, as the accusation remains unchanged. We also find merit in the submission of Mr. Moitra that 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 the Court in the earlier application for anticipatory ball.
21. Accordingly, the first question under the present reference is answered in the negative. We are of the view that the second application for anticipatory bail, even if new circumstances develop after rejection or disposal of the earlier application, is not maintainable.
22. Now, let us take up the second question under the present reference for consideration. Mr. Dutt, learned advocate appearing for the petitioners referring to the decisions of Salauddin Abdul Samad Shaikh (1996 Cal Cri LR (SC) 130 : (1996 Cri LJ 1368) and K.L. Verma (1997) Cal Cri LR (SC) 88), submits that reasons for limiting the duration of anticipatory bail was that when the Court of Session or the High Court grants anticipatory bail, it is granted at a stage when the investigation is incomplete or at the initial stage and as such, the Court granting anticipatory bail should leave it to the regular Court to deal with the matter on appreciation of evidence gathered after the investigation has progressed to a considerable extent or charge-sheet is submitted.
23. Mr. Dutt submits that even if a second application for anticipatory bail is allowed and the accused goes before a Magistrate, he may not accept surrender and refer the accused again to the higher Court for necessary order of bail. The accused has to approach the higher Court again and this unwholesome procedure will continue and the accused would be subjected to unnecessary harassment and hardship instead of any relief. It is submitted by Mr. Dutt that in such circumstances, the superior Court should treat such application as an application for bail under Section 439, Cr. P. C. and the accused should be deemed to be in judicial custody in view of the decision of the Supreme Court in the case of Niranjan Singh v. Prabhakar, .
24. In such circumstances, according to Mr. Dutt, where the trial Court accepts surrender or not and grants time to the accused to obtain order of bail from the superior Court in view of the order of anticipatory bail, the superior Court should treat such application as an application for bail under Section 439, Cr. P. C. and the accused should be deemed to be in custody. It is also the submission of Mr. Dutt that when there is specific provision in the Code of Criminal Procedure regarding bail, the revisional jurisdiction or inherent power under Section 482, Cr. P. C. should not be invoked.
25. Mr. Srivastava, learned advocate appearing for the petitioner in C. R. No. 4915 of 1999 (Maya Rani Guin and another v. State) submits that fresh application for anticipatory ball after the prayer for regular bail is rejected by the learned Magistrate, is not maintainable because of the reasons that after the judgment of the Supreme Court in the case of K.L. Verma it is neither desirable nor legally valid that after the rejection of the prayer for regular bail a person would again pray for anticipatory bail during the subsistence of the earlier order of anticipatory bail. This is not possible because this would lead to an absurd situation when a person would be under the protection of two orders of anticipatory ball in one accusation.
26. It is submitted by Mr. Srivastava that after the anticipatory bail is granted when the accused surrenders before the Magistrate, he comes under the control of the Court and before his application for bail is taken up for consideration under Section 437, Cr. P. C. he is taken into custody. So, one of the requirements of Section 438, Cr. P. C. "that the petitioner has reason to believe that he would be arrested for having committed a non-bailable offence", ceases to exist and as such fresh application for anticipatory bail, after surrender and the rejection of prayer for regular bail, is not maintainable. Mr. Srivastava submits that if after rejection of regular bail fresh application for anticipatory bail is held to be maintainable, then it would be a never ending process. According to Mr. Srivastava the remedy of filing a fresh application for anticipatory bail would be illusory and that cannot provide any substantial justice to the accused person.
27. Mr. Moitra, learned Additional Public Prosecutor did not dispute the said, arguments advanced by the learned Advocates of the petitioners and submits that fresh application for anticipatory bail, after rejection of the regular prayer for bail, is not and cannot be held to be maintainable.
28. After hearing the learned Advocates of the respective parties, we are of the considered view that it is not possible to hold that an accused person who has been granted an order (anticipatory bail) under Section 438, Cr. P. C. from the High Court or the Court of Session but denied regular bail by the Court below, has once again to move another application for anticipatory bail under Section 438, Cr. P. C. for the grant of same relief which he had once obtained. In that event, this would amount to introduction of a new procedure, which is neither contemplated under Section 438, Cr. P. C. nor any such procedure appears to have been conceived of by the Supreme Court through interpretative process of law, either in the case of Gurbaksh Singh or in the case of K.L. Verma. As submitted by Mr. Srivastava, once the accused surrenders before the Magistrate before his application is taken up for consideration under Section 437, Cr. P. C., the requirement of the apprehension or reason to believe that he would be arrested ceases to exist. Second application for anticipatory bail in those circumstances would, therefore, not be maintainable. Also, the Courts cannot consider such applications for anticipatory bail from stage to stage on the logic that once regular bail is denied, the "apprehension of arrest" revives.
29. In view of the discussions made above the second question under the reference is also answered in the negative. In our considered view the fresh application for anticipatory bail under Section 438. Cr. P. C., after rejection of the prayer for regular bail, is not maintainable.
30. Questions Nos. (iii), (iv) and (v) in the present reference are taken up together by us for consideration for the sake of convenience. It is the submission of both the learned advocates appearing for the petitioners that when a person surrenders and prays for bail under Section 437 or 439 of the Code, before his prayer for bail is considered he is taken into custody. When a prayer for bail is rejected, the person remains in custody and control of the said Court. Taking the extended meaning of custody as decided in the case of Niranjan Singh. 1980 SCC (Cri) 508 : (1980 Cri LJ 426) that custody "is physical control or at least physical presence of the accused in Court coupled with submission to the jurisdiction or orders of the Court, it is submitted by the learned advocates of the petitioners that when a person physically surrenders before the learned Magistrate, such person is under the control of the Court. The said submission is not without merit. The very jurisdiction of Court considering an application for regular bail is founded upon that jurisdictional fact as observed in Niranjan Singh's case (1980 Cri LJ 426), cited supra, "................... the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose. ...................."
31. The next question for consideration is whether after the prayer for regular bail is rejected and such person is granted time to move the higher Forum, what is his remedy? This question assumes importance in the light of the observations of the Supreme Court in K.L. Verma's case, cited supra.
32. Unless a person accused of an offence is in custody his application for regular bail cannot be taken up. This being jurisdictional fact under Section 439. Cr. P.C., doubts have arisen as to how effect, if at all, can be given to the dicta of the Supreme Court in K.L. Verma's case (1997 Cal Cri LR (SC) 88) (supra) and more particularly to that portion of the statement in the judgment of the Supreme Court which has been extracted in earlier part of this judgment in relation to question No. (ii) under reference. The aforestated statements in K.L. Verma's case, assume further significance in the light of the statements made in that judgment which are made in the context of limiting the duration of anticipatory bail.
33. The judgment of the Supreme Court in the case of K.L. Verma v. State (reported in 1997 Cal Cri LR (SC) 88) seeks to clarity an idea, which started gaining ground owing to the decision of the Supreme Court in the case of Salauddin Abdul Samad Shaikh v. State of Maharashtra (reported in (1996) SCC 667 : (1996 Cri LJ 1368)): wherein it was held that anticipatory bail order should be of a limited duration only and ordinarily on the expiry of that duration or extended duration, that Court granting anticipatory bail should leave it to the regular Court to deal with the matter on an application of evidence placed before it after the investigation has made a progress or the charge-sheet is submitted. In explaining the decision rendered in Salauddin's case (1996 Cri LJ 1368) (supra), the Supreme Court observed as follows :
"By this, what the Court desired to convey was that an order of anticipatory bail does not enure till the end of trial but it must be a limited duration as the regular Court cannot be bypassed. The limited duration must be determined having regard to the facts of the case and the need to give the accused sufficient time to move the regular Court for bail and to give the regular Court sufficient time to determine the ball application. In other words, till the bail application is disposed of one way or the other the Court may allow the accused to remain on anticipatory ball. To put it differently, anticipatory bail may be granted for a duration which may extend to the date on which the bail application is disposed of or even a few days thereafter to enable the accused persons to move the higher Court, if they so desire. This decision was not intended to convey that as soon as the accused persons are produced before the regular Court the anticipatory ball ends even if the Court is yet to decide the question of bail on merits. The _decision in Salauddin's case, has to be so understood."
34. Clarificatory judgment in K.L. Verma's case, however, did not end the controversy instead gave rise to certain anomalous situations and conflicting judicial views in giving effect to the same. Conflicting judicial views were expressed with respect to the nature of remedy available to the accused when the regular bail is rejected and the accused is not in custody particularly in view of the observations of Supreme Court in K.L. Verma' case (1997 Cal Cri LR (SC) 88) which are to the effect".................. the Court may allow the accused to remain on anticipatory bail" when read with the statement "to enable the accused persons to move the higher Court. ..... .".
35. With pointed reference to Section 439(1)(a) it is stated on behalf of the prosecuting/investigating agency that moving the superior Court for bail presupposes, as the Section clearly suggests, the applicant for bail must be "in custody", a state of affair which is in contradistinction to enunciation of law relating to anticipatory ball as also to that part of the decision (K.L. Verma's case) which through interpretative process, grants extended duration to an accused so as to enable him to move the superior Court. The other view, propounded by the supporters of the concept of personal liberty, is that a law declared by the Supreme Court is commandful as law made by the legislative body and that the constitutional authority of the Supreme Court to declare the "law" is plenary and binding on all. The combined effect of Article 141 read with Article 144 of the Constitution of India makes it obligatory on all authorities in India, judicial and civil to act "in aid" of the Supreme Court and not in derogation of the law enunciated by the Supreme Court, (vide Nand Kishore v. State of Punjab. 1995 AIR SCW 4650).
36. We are to decide which one on these two conflicting views is acceptable and how we can harmonise the law emerging from Section 438 read with Section 439(1)(a) of the Code and the views expressed by the Supreme Court in the case of K.L. Verma (1997 Cal Cri LR (SC) 88).
37. The word "custody", though not defined in the Code of Criminal Procedure, came to be interpreted and explained by the Supreme Court in the case of Niranjan Singh v. Prabhakar Rajaram Kharote, reported in 1980 SCC (Cri) 508 : (1980 Cri LJ 426). Issue before the Supreme Court was, in the words of His Lordship Krishan Iyer, J. "When is a person in custody within the meaning of Section 439. Cr. P. C.". His Lordship referred to few situations wherein a person can be said to be in custody and the last of such situations had been described as "having offered himself to the courts jurisdiction and submitted to its orders by physical presence". In construing the work "custody" in the manner indicated in the said judgment, Their Lordships of the Supreme Court proceeded to state (para 7 of Cri L J);
"No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the Court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibbling and hide and seek niceties sometimes heard in Court that the police have taken a man into informal custody but not arrested him, have retained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the view. We need not dilate on his shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose."
38. Thus, an accused, it must be assumed in the light of the above dicta, is in 'custody' when the law has taken control of the person. Therefore, if the accused is on anticipatory bail and physically submits himself before the Court where the application for bail is filed, it is to be assumed that law has taken control of the person.
39. If in exercise of its power under Section 438 of Cr. P. C. the High Court or the Court of Session fixes duration as a condition of bail, the accused is required to seek regular bail under Section 437 of the Code and/or under Section 439 of the Code within the said duration. If regular ball is refused, the further remedy available to the aggrieved accused is for moving the higher Forum for regular bail. It is not and cannot be disputed that successive bail applications are permissible. The only condition being that unless there is change in the circumstances, the second application would not be maintainable on the ground that it would be deemed to be seeking review of the Court's earlier judgment which is not permissible under Criminal Law. The irresistible conclusion, therefore, in the light of the observation in K.L. Verma's case (1997 Cal Cri LR (SC) 88) (". ............ move the higher Court"), is that a regular bail application before higher Court is the only remedy. The bar of review by the same Court of its earlier judgment will not be attracted though circum-stances remaining the same.
40. As a consequence of the rejection of regular bail, the accused has to be taken into custody. However, keeping in view the observations in K.L. Verma's case and binding nature of the dicta of Supreme Court this again is dependent upon the fact as to whether the duration fixed by the Court granting anticipatory bail is over or not. If the outer limit which was prescribed as a condition while granting anticipatory bail has not expired, the accused may not be taken into custody but may be allowed within the remaining period of the anticipatory bail (outer limit prescribed by the order of anticipatory bail) to move the higher Court. Where, however, the regular bail application is rejected and there is no remaining period of anticipatory bail available to the accused, he must have to be taken into custody in accordance with the prescribed procedure before the application for regular bail can be considered by the higher Court. This being a jurisdictional fact and on this aspect of the matter there was no difference of opinion between the two Hon'ble Judges from whose order this reference arose.
41. This anomalous situation can, however in our respectful view, be avoided if the Court granting anticipatory bail in exercise of the discretion vested in it, stipulates by directing that the anticipatory bail will enure till the Magistrate or regular Court decides the question of grant of bail and for a reasonable period thereafter, say a week thereafter, so that if the regular bail is refused the accused person can, if so advised, move the superior Court within the outer limit specified in the anticipatory bail without being taken into custody.
42. In the context of the views expressed by us suffice it to state that it will not be necessary for the person concerned to take recourse to revisional remedy or invoke the jurisdiction under Section 482 of the Code since the jurisdiction of this Court or the Court of Session is available to him for obtaining regular bail.
43. Let us now summarize the position emerging from the above discussion.
(a) The only remedy available to the accused upon rejection of regular ball is to apply to the superior Court for regular bail and not once again for anticipatory bail.
(b) Accused who prefers an application for regular bail in compliance with the conditions stipulated in the order of anticipatory bail and physically submits to the jurisdiction and order of the Court, before which such application is filed, the application is required to be disposed of on merits if the outer limit of the anticipatory bail has not expired and the accused has appeared in person and placed himself in the control of the Court.
(c) If the application for regular bail is moved within the duration of anticipatory bail, but the passing of the order is delayed for any reason whatsoever and it is likely to come after the expiry of the outer limit of the duration fixed by the order of anticipatory bail, the Court hearing the regular bail application can always grant interim regular bail for limited duration till final orders are passed by the Court.
(d) If the application for regular bail is moved within the duration of anticipatory bail and the same is rejected/refused but the outer limit prescribed by the order of anticipatory bail has not expired, then instead of taking the accused into custody he may be allowed to move the superior Court for bail within the specified period namely the outer limit as specified in the order of anticipatory ball.
(e) If the application for regular bail is moved after or the date as on which the application for regular bail is rejected and in either case the outer limit prescribed by the order of anticipatory bail has expired, then and in that event on and from that date of expiry of the period fixed by the order of anticipatory bail, the accused must surrender and be in the custody of the Court before the superior Court can take up for consideration the application for regular bail.
44. The reference is answered accordingly.
45. Since similar point is involved in both the matters, this judgment shall also govern the other matter being C. R. M. No. 2135 of 2001 (Mrs. Darshana D. Taunk v. The State of West Bengal).
46. The reference/s is/are answered accordingly. Let the respective matters be now placed before appropriate Bench having the determination.
Debiprasad Sengupta, J.
47. I agree.
Amit Talukdar, J.
48. I agree.