Madhya Pradesh High Court
Imratlal Vishwakarma And Ors. vs State Of Madhya Pradesh on 9 February, 1996
Equivalent citations: 1996(0)MPLJ662
Author: Rajeev Gupta
Bench: Rajeev Gupta
ORDER R.P. Awasthy, J.
1. This order shall also govern the disposal of Misc. Criminal Case Nos. 5563/95 and 5772/95.
2. Misc. Criminal Case Nos. 648/95, 5563/95 and 5772/95 have been referred to a Larger Bench by an Hon'ble Single Judge for resolving the controversy as to whether second application filed under Section 438 of the Code of Criminal Procedure after rejection of the first application would or would not be tenable. The controversy has arisen on account of the fact that Hon'ble Single Judge of this High Court (Hon'ble P. N. S. Chouhan, J.), placing his reliance on 1992 Cri. LJ. 2208, Malla Ramarao v. State, has held that second bail petition under Section 438, Criminal Procedure Code is not tenable. However, in 1993 Cr.L.J. at page 476, Dharmendra v. State of M. P., it has been held by Hon'ble Shacheendra Dwivedi, J. that second petition under Section 438, Criminal Procedure Code would be tenable if the earlier petition has been withdrawn and consequently dismissed. In this authority, 1986 Cr.L.J. at page 279, Ram Sahodar v. State of M. P. has been relied upon for drawing an analogy between Sections 438 and 439, Criminal Procedure Code.
3. Following question therefore has been referred to this Bench :
"Whether a second application for anticipatory bail is maintainable and whether it would make any difference if earlier application was dismissed on merits or on account of having been withdrawn or not pressed?"
4. Our answer to the said question is that the second petition for anticipatory bail is maintainable and it would not make any difference if earlier application was dismissed on merits or on account of having been withdrawn or not pressed.
5. The reasons for our answer are as follows :- To hold that the second bail application under Section 438, Criminal Procedure Code, would not be maintainable if earlier application has been rejected, would be importing something which is not there in the codified and legislated law. There is no statutory prohibition contained in the Code of Criminal Procedure that on an application filed under Section 438, Criminal Procedure Code, being rejected, the person apprehending his arrest in connection with some non-bailable offence cannot file a fresh application for being released on bail under Section 438, Criminal Procedure Code. Therefore, with great respect, we are unable to agree with the view taken in M.Cr.C No. 4109/92, Ram Sewak Sharma v. State (in which reliance has been placed on 1992 Cr. LJ. 2208, M. Ramarao v. State) that on an application filed under Section 438, Criminal Procedure Code being rejected the petitioner is duty bound in law either to surrender himself before the concerned authority or to file a petition for special leave in the Supreme Court.
6. This matter can be elucidated by giving some examples. "A" is found to be in possession of white powder kept in a packet. The said powder is seized from him on account of suspicion that it may be a narcotic substance like brown sugar. However, he is not arrested. Since seizure has been made from him, "A" moves an application under Section 438, Criminal Procedure Code. However, the same is rejected at the first instance saying that the article has been sent to Chemical Examiner. The report of the Chemical Examiner is received subsequently, which reveals that the said powder is Soda bicarb and is not brown sugar. Nevertheless, the prosecuting agency is bent upon prosecuting him. Whether it can now be said that the second application would be barred or not tenable simply because earlier application was rejected?
7. We may consider yet another example in this context. A rich man has kept on his pay roll a lady of loose moral. For wreaking vengeance he prompts his keep to lodge a report of rape having been committed on her by "B". To give a ring of truth, the said prosecutrix self inflicts some minor injuries and lodges a report. Looking to the nature of offence, first application filed under Section 438, Criminal Procedure Code is rejected. On further investigating the matter, it appears from the material collected in the case diary that the accusation might be false. Should the second application be rejected as untenable only on the ground that the previous petition was rejected?
8. It may further be pertinent to mention here that there may also be cases where just to save her image from being or getting tarnished, a lady who has crossed the age of consent, that is, she is above the age of sixteen years may lodge a report that the sex act was without her consent. Relying on the said statement, on its face value, an earlier application filed by the accused stands rejected. However, on further enquiry and investigation it may appear that it is as clear as a writing on a wall that there was no want of consent on the part of prosecutrix. Should the subsequent petition be rejected on the ground that it is not maintainable, as the earlier application was rejected?
9. If in such given circumstances as have been illustrated above, petition filed under Section 438, Criminal Procedure Code is rejected on the ground that second petition under Section 438, Criminal Procedure Code is not maintainable, the whole purpose for which the said section was enacted would be frustrated and forfeited.
10. Therefore, petitioner can, even if the first application filed under Section 438, Criminal Procedure Code is rejected, file a fresh application under Section 438, Criminal Procedure Code and obviously, the principle of res judicata would not apply in such a matter. If the application has been filed on the same grounds which had already been considered earlier while rejecting the first bail application, it can be rejected summarily on the ground that the same grounds have been re-agitated in the fresh petition and the petition has not been moved on any new ground. However, it shall have to be considered in each petition on the facts and circumstances of that case that the said aspects had been pressed into service in the previous petition which was rejected and no new ground has been shown to exist for releasing the petitioner on bail under Section 438, Criminal Procedure Code. This can be determined only on the facts and circumstances of each case and the Court has to decide as to whether the fresh petition has been filed on the same grounds which were considered and not accepted, or rejected in the previous petition and no new ground has been made out in the second application. In our opinion, to say that the second application filed under Section 438, Criminal Procedure Code would not be tenable, would be laying down something which is not there in codified and legislated legislation.
11. While holding that second application filed under Section 438, Criminal Procedure Code would not be tenable, it was observed by Hon'ble Single Judge of this Court (Hon'ble P.N.S. Chouhan, J.) in Ramsewak Sharma v. State of M.P., M.Cr.C.No. 4109/92 as follows :
"On rejection of an application under Section 438 of the Code of Criminal Procedure by this Court, the options open to the applicant are either to surrender before the concerned authority or to file a Special Leave Petition, before the Supreme Court. Where he adopts neither of these courses, it will be reasonable to infer that in utter disregard of the process of Law, he has deliberately absconded. In such circumstances, his second application for anticipatory bail must be held barred at the threshold and he should be directed to surrender to the concerned authority forthwith."
12. In this regard, it has to be seen that when an accused files an application under Section 438, Criminal Procedure Code for being released on anticipatory bail, he must be having an apprehension that he is going to be arrested in connection with some non-bailable offence. Therefore, it has to be inferred that he has knowledge that a non-bailable offence has been registered against him. Under the given circumstances, it cannot be said that since in spite of said knowledge he has applied for being released on bail under Section 438, Criminal Procedure Code without surrendering himself before the Competent Authority, his application would not be maintainable.
13. While rejecting the first application there is nothing in law authorising the Court in directing the petitioner to surrender before the Competent Authority. Conditions can be imposed under sub-section (2) of Section 438, Criminal Procedure Code when the Court directs that in the event of arrest, he shall be released on bail. But when the first application is rejected, the law does not envisage that any such condition can be imposed that the accused should surrender before Competent Authority. In view of the said reasoning, it cannot be inferred that after rejection of the first application, the accused is deliberately absconding. Consequently, the second application cannot be said to be untenable on the said score as well.
14. Nevertheless, as has already been mentioned looking to the facts and circumstances of each case and considering the conduct of the accused in a given case, a second bail application filed under Section 438, Criminal Procedure Code can of course be rejected on the facts and merits of the case. Such a second petition can even be summarily rejected if the facts and circumstances of that particular case so warrant. But to hold that second application would not be tenable under law would be laying down a rule of law which is not there in the codified and legislated legislation. Obviously holding a petition being not maintainable under law is one thing and the petition being liable to be rejected, even summarily, on the basis of its facts or its merits, is the other.
15. In 1993 Cr.L.J. 476, Dharmendra v. State of M. P., it was laid down that second application would be maintainable in case the earlier petition for bail under Section 438, Criminal Procedure Code was withdrawn and was rejected having been not pressed. However, in our opinion, no such fetters can be put or applied on the second petition. Second petition filed under Section 438, Criminal Procedure Code has to be decided on its merits even if the earlier application was rejected on its merits. It shall, however, be open for the Court to reject it even summarily on the ground that the said second petition is nothing but a repetition of the earlier petition and no new ground has been disclosed in the second petition. This may take care of the apprehension that if the second applications are held to be tenable, it may lead to misuse of the said provision and the Courts would be flooded with such repeated petitions.
16. Para No. 6 of the authority reported in 1986 Cr. LJ. at page 279, Ram Sahodar v. State of M. P. reads as follows :
"In Babusingh's case, 1978 Cr.L.J. 651 (supra), the Supreme Court was considering a second application after one such application was earlier rejected. It was then ruled that an order refusing an application for bail does not necessarily preclude another, on a later occasion, giving more materials, and further developments. It was also held that the Court is not barred from a second consideration at a later stage and that an interim direction is not a conclusive adjudication and that an updated reconsideration is not overturning an earlier negation. Second application was entertained. This dictum leaves no manner of doubt that the law does not prevent second consideration of an application for bail on rejection of the first one. The earlier rejection is not conclusive. This also indicates that while rejecting an application for bail, the Court will not be within its competence to bar consideration of a subsequent bail application which may be necessitated on account of subsequent events and developments."
17. In our opinion, the said principle would apply, on the basis of analogy, in connection with an application filed under Section 438, Criminal Procedure Code as well as has been tried to be elucidated by giving examples and, since the law does not preclude entertainment of any second application under Section 438, Criminal Procedure Code, it cannot be said that second application would not be maintainable in law. However, as has 'already been observed, the said second bail application can of course be rejected even summarily when it is not based or necessitated on account of subsequent events and developments or changed circumstances.
18. While explaining and propounding the scope of Section 438, Criminal Procedure Code it was observed in the later part of para 25 in AIR 1980 SC 1362, Gurbax Singh v. State that the power conferred by Section 438, Criminal Procedure Code is of an extraordinary character in the sense that it is not ordinarily resorted to like the power conferred by Sections 437 and 439, Criminal Procedure Code. It was also laid down that power to grant anticipatory bail should be exercised with due care and circumspection but beyond that it was not possible to agree with the observations made in Balchandani's case, AIR 1977 SC 366, Balchand Jain v. State of M. P., in altogether different context on an altogether different point. A note of caution has been given in the last line of para No. 26 of the same authority by observing :
"We ought, at all costs, to avoid throwing it open to a constitutional challenge by reading words in it which are not to be found therein."
As has already been mentioned, there is no statutory prohibition (like the prohibition contained in Section 397(3)) barring second petition under Section 438, Criminal Procedure Code and, therefore, in view of the authority referred above, the Court should avoid reading words in the said section which are not to be found therein.
19. In Bhagirath v. State of M.P., 1980 MPLJ 373, it was held that if a petition filed under Section 438, Criminal Procedure Code has been rejected by the Court of Session, further application to High Court is not barred. The same view has been taken in Full Bench authority of Himachal Pradesh, reported in AIR 1980 H.P. 36, Mohan Lal v. Prem Chand. It has to be seen that concurrent powers have been given to the Court of Session as well as to the High Court. Therefore, on the analogy and the reasoning given in the said authority, second application under Section 438, Criminal Procedure Code would not be untenable, if the first application has been rejected either by Sessions Court or by High Court. Nevertheless, to avoid abuse of process of law, the Court in which the said second application under Section 438, Criminal Procedure Code is moved, would obviously be entitled and competent to consider as to whether the said second application is actually being moved on some new grounds or not. If the said application is moved on same grounds on which previous application was moved, and the said grounds after being considered have been held to be such as not warranting release of the accused petitioner on bail under Section 438, Criminal Procedure Code, subsequent application on same grounds would be liable to be rejected even summarily on its merits. Conduct of the accused petitioner, in avoiding his arrest, can also be taken into consideration while deciding the said second petition on merits. But, since there is no statutory prohibition for the second application being moved, laying down that the second application under Section 438, Criminal Procedure Code would not be maintainable, would amount to reading the words which are not there in Section 438, Criminal Procedure Code.
20. Therefore, in view of the said reasonings, the question referred to the Larger Bench has been answered by us, as second application under Section 438, Criminal Procedure Code is maintainable and it would not make any difference if earlier application was rejected on merits or was dismissed on account of having been withdrawn or not pressed.