Dharmendra Rao v. State of M. P. — 1993 DIGILAW 296 (MP)

ORDER Shacheendra Dwivedi, J. -- 1. The petitioner has preferred this petition under section 438 Cr.P.C. which raises the important and thought provoking issue whether once an application for the grant of anticipatory bail of an accused has been dismissed by the Court, his second application for the same relief would not be entertained by the Court as being not maintainable. 2. The petitioner had filed an application before the Sessions Judge, Gwalior, for the grant of anticipatory bail under section 438 Criminal Procedure Code (for short the 'Code'), but before the Court could examine the merits of the case or comment there upon; he wanted his application to be dismissed as not pressed and it was, therefore, dismissed as such, when the petitioner thereafter moved second application for the grant of anticipatory bail with some more details, the application was dismissed by the learned Court below merely on the ground that the application being the second one was not entertain able or maintainable in view of a single Bench decision of this Court in Ramsewak Sharma v. The State of M.P. (Misc. Criminal Case No. 4109/92). The issue is one which falls under Chapter XXXIII of the Code. " 3. It is Chapter XXXIII of the Code which relates to the provisions as to the "Bail and Bonds' and sections 436, 347,438 and 439 deal with those matter. There is absolutely no whisper in the Chapter which may impress that a bar was created by the law in the second bail application particularly for the grant of anticipatory bail, being entertained by the Court. The bail is the right of an accused. It is rather his legal right which attracts and very much concerns the fundamental right of liberty of a citizen envisaged in our Constitution, which is the supreme law of the land. 4. The liberty of a citizen cannot be jeopardised without the due process of law. Procedure relating to the bails is mobile and not static. If an application for bail has been rejected once, it cannot be taken that the accused cannot exercise his right later basing it on subsequent events or on the change in circumstances or on the fresh ground being available to him. Rejection of bail, is an order of the moment. Procedure relating to the bails is mobile and not static. If an application for bail has been rejected once, it cannot be taken that the accused cannot exercise his right later basing it on subsequent events or on the change in circumstances or on the fresh ground being available to him. Rejection of bail, is an order of the moment. The valuable right of an accused cannot be shutdown and no fetters can be imposed, which have not been provided by law. It would not be within the competence of Court in exercise of its judicial discretion to do that which the law does not sanction. The language or the words of a statute must be interpreted by the Court with a view to promote public good and to prevent the misuse of power. The Court has to maintain the balance in between the "liberty" of an individual on one side and the "order" in the society on the other. 'The purpose of interpretation is to sustain the law. 5. In the authority, relied upon "by the lower Court, the single Bench of this Court has referred to and placed reliance on an authority of Andhra Pradesh High Court in Malla Ramarao and others v. The State (1992 Cr.LJ. 2208) for taking the view, in Ramsewak Sharma's case (supra) that: "3. 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." 6. But in the above referred authority of Andhra Pradesh High Court, the application for grant of anticipatory bail made by the accused petitioner was rejected by the Court under an appropria te order which meant that the Court after considering the merits of the case found the accused not entitled to the grant of anticipatory bail. But in the above referred authority of Andhra Pradesh High Court, the application for grant of anticipatory bail made by the accused petitioner was rejected by the Court under an appropria te order which meant that the Court after considering the merits of the case found the accused not entitled to the grant of anticipatory bail. But then a distinction has to be drawn in the two situations, an order passed by the Court rejecting the application of an accused on the consideration of merits and the other on dismissal which may be in default or as "not pressed" or "as withdrawn", when the Court did not advert to the merits. For some reasons the accused might choose not to seek bail for the time being. After such dismissal of his application if an accused does not offer his arrest, in order to exercise his right for the grant of anticipatory bail, it would not imply his ascendance, on his moving the second application later. The accused cannot be taken to have exhausted his right of anticipatory bail when it was dismissed by, the Court without the consideration of merits. 7. It may also be true that in the matters of anticipatory bail, there are lesser chances of the change in circumstances or of the happenings subsequently but then there may also be cases where there may not be a substantial gap in the dismissal of earlier bail application and where due to change in the circumstances or on a ground being available later, the accused may again opt to assert his right for the grant of anticipatory bail and to curtail that right with no reservations would be absolutely shutting the doors of justice which is impermissible under the law and would be against the very concept of the "Court". 8. The knowledge of an accused that there was a case against him in which his arrest was required 'by the police, and his making of an application for the grant of anticipatory bail would not mean his fleeing away from the course of law. It has to be borne in mind, that it is the right given by the law to an accused under the Code that when he has 'reason to believe' that his arrest would be effected by the police in a non-bailable offence he may apply for the grant of anticipatory bail. It has to be borne in mind, that it is the right given by the law to an accused under the Code that when he has 'reason to believe' that his arrest would be effected by the police in a non-bailable offence he may apply for the grant of anticipatory bail. The very filing of an application for the grant of anticipatory bail by an accused may imply his knowledge of registration or otherwise of a non- bailable offence against him and the dismissal of the application without any consideration of the merits of the case by the Court, would not carry the matter any further. Unless the application is rejected on the consideration of merits and the accused does not surrender to the authorities thereafter within a reasonable time, there can be no cause for inferring his abscondance. It would, only be a long term non-availability of the accused to the police that his abscondance may be inferred and his conduct may disentitle him for the exercise of extra ordinary discretion by the Court, in his favour, but if an accused asserts his right for the grant of anticipatory bail in short succession by making subsequent application his abscondance cannot be presumed. It should remain open to the accused to move the Court for the grant of anticipatory bail and the application would only succeed when the Court after the scrutiny of relevant facts and circumstances reaches to the conclusion that a good case for the grant of anticipatory bail was made out by the accused. With a view to attach the finality to a situation, the doors of the courts cannot be closed unless the law so provides or permits. An unqualified order of declaring a second bail application as not maintainable for the grant of anticipatory bail, even when the accused is in a position to demonstrate the prima facie falsity of the allegations and the ulterior ness of the motive of prosecution for levelling the same, would be defeating the very purpose of the provision. 9. An unqualified order of declaring a second bail application as not maintainable for the grant of anticipatory bail, even when the accused is in a position to demonstrate the prima facie falsity of the allegations and the ulterior ness of the motive of prosecution for levelling the same, would be defeating the very purpose of the provision. 9. The purpose of enacting and introducing section 438 in the Code was to implement the recommendations of Law Commission, in its 41st Report, wherein it was observed that the necessity for granting anticipatory bail arises mainly because sometimes the influential persons try to inplicate their rivals in false cases for the purposes of disgracing them in society or for other -purposes, by getting them detained in jail for sometime. In the recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Parliament found that getting the innocent persons arrested in false charges are neither unknown nor uncommon in many parts of our country. The Criminal Law which is intended for' the benefit of all, was being used by the intluential and the powerful for the ruin of others. Therefore, in order to suppress that mischief, section 438 of the Code was enacted by the Parliament. 10. Section 438 (1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The petitioner must show that he has "reason to believe" "that he may be arrested for a non-bailable offence" Mere "fear" is not enough. "Belief" must be founded on reasonable grounds. 11. It appears that a Division Bench judgment of this Court in Ram Sahodar v. State of M.P. (1986 CLLJ. 279) was not brought to the knowledge of the single Bench while it took the view that second application under section 438 of the Code was not maintainable. This Court in Ram Sahodar's case (supra) found that a subsequent application under Chapter XXXIII of the Code not being prohibited would lie. before the Court. Although in that case the Court was dealing. with a matter under section 439 of the Code but the ratio of the case governs the situation of anticipatory bail as well. This Court in Ram Sahodar's case (supra) found that a subsequent application under Chapter XXXIII of the Code not being prohibited would lie. before the Court. Although in that case the Court was dealing. with a matter under section 439 of the Code but the ratio of the case governs the situation of anticipatory bail as well. Under the judicial discipline in the matter of procedure, I am bound by the dictum laid down by the Division Bench of this Court in Ram Sahodar's case (supra) wherein it has been observed as follows: . "5. ... Significantly, Chapter XXXIII does not contain any provision prohibiting subsequent applications for release on bail after an application for that purpose has earlier been rejected." The Apex Court in Babu Singh v. State of V.P. ( AIR 1978 SC 527 ) 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. This Court in Ram Sahodar's case (supra) held that: "6. 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 development. " 12. For the foregoing reasons being bound by the Division Bench decision of this Court with respect I am unable to accept the view expressed in Ramsewak Sharma's case (supra). 13. It would be open to the Court to entertain the second application if the first application was dismissed for the default or as not pressed or as withdrawn because in those situations the Court had no opportunity of examining the merits' of the case to find out that no case for the grant of anticipatory bail was made out. 14. As a sequal of the above discussion, it is held that the subsequent application of an accused would be maintainable in the Court. 14. As a sequal of the above discussion, it is held that the subsequent application of an accused would be maintainable in the Court. In the instant case', the learned Court below has not examined the merits, as such it may be observed that if the petitioner applies afresh for the grant of anticipatory bail before the Sessions Court, in that event, his application shall be decided by the Sessions Court on merits by adverting to the facts and circumstances of the case. Petition is finally disposed of.