Judgment N.K. Jain , J.- The petitioner has filed this second bail application under Section 438 CrPC before this Court on 7.2.2005 after dismissal of his first bail application under Section 438 CrPC on 2.2005. 2. One Shri Harpreet Singh, an official of Municipal Board, Hanumangarh Town, lodged a FIR on 18th September, 2004 at Police Station, Vishwakarma, Jaipur wherein it was alleged that on 17th September, 2004 he alongwith Mr. Madan Singh Budhaniya, Executive Officer, Municipal Board, Hanumangarh was travelling in the bus of Sharma Travels from Hanumangarh to Jaipur alongwith two bags of record containing 41 files in one bag and six files in another bag. During the journey, one Sumit, member of Municipal Board also came in the said bus at Bus Stand, Pallu. When thy reached Jaipur, then he saw that both the bags were missing. During investigation, some evidence came on record that Sumit took some files from the bus and gave to the petitioner, who was travelling in car. 3. Being apprehended with the arrest, the petitioner moved a bail application under Section 438 CrPC before the Session Judge, Jaipur City and the same was dismissed vide order dated 211.2004. Thereafter, the petitioner moved S.B. Criminal Misc. Bail Application No. 5795/2004 under Section 438 CrPC before this Court. The case diary was summoned in the matter and the arguments were heard. The involvement of the petitioner was found in the incident and because of the fact that recovery of the files were to be made, the bail application of the petitioner was dismissed by this Court on 2.2005 4. This second Bail Application bearing S.B. Criminal IInd Bail Application No. 783/2005 was filed on 7.2.2005 and the same was listed on 8.2.2005. During course of arguments, a question arose as to whether second bail application under Section 438 CrPC is maintainable or not ? The time was sought by the learned Counsel for the petitioner, which was allowed. Thereafter, arguments were heard and concluded from both the sides. 5. The learned Counsel for the petitioner has cited number of Judgment s of this Court to show that Second Bail Application under Section 438 CrPC are being entertained and they have been allowed also. The time was sought by the learned Counsel for the petitioner, which was allowed. Thereafter, arguments were heard and concluded from both the sides. 5. The learned Counsel for the petitioner has cited number of Judgment s of this Court to show that Second Bail Application under Section 438 CrPC are being entertained and they have been allowed also. Some Judgment s are to the effect wherein Second and Fourth Bail Application under Section 438 CrPC were allowed but, there was no discussion as to whether the Second Bail Application under Section 438 CrPC is maintainable or not? In some cases, an objection was raised about the maintainability of Second Bail Application under Section 438 CrPC and it was held that in the changed circumstances, the Second Bail Application can be entertained. 6. This Court in other cases has taken a view that Second Bail Application under Section 438 CrPC is not maintainable. 7. (i)In the case of Ramgopal vs. State of Rajasthan, reported in 1983 CrLR (Raj.) p. 217, the said question was considered and after discussion, it was held that on change of circumstances, subsequent or Second Bail Application under Section 438 CrPC is maintainable. 7. (ii)In Babulal vs. State of Rajathan, reported in 2004 (3) RCrD 504 (Raj), this Court considered the issue as to whether the Second Bail Application under Section 438 CrPC is maintainable or not ? This Court held that Second Bail Application for anticipatory bail under Section 438 CrPC is maintainable only on the basis of new facts and in the changed circumstances. 7. (iii) In the case of Vishnu Nath Mathur vs. State of Rajasthan, reported in 2004 (1) RCrD 63 (Raj.), this question was again considered as to whether Second Bail Application under Section 438 CrPC is maintainable or not and after considering the issue, it was held that Second Bail Application under Section 438 CrPC is maintainable on medical ground and in the changed circumstances. .8. .8. In the following cases, the Second, Third and Fourth Bail Applications under Section 438 CrPC were entertained but, the issue as to whether the subsequent or Second Bail Application under Section 438 CrPC is maintainable or not, was not considered:- .(1) Nahar Singh vs. State of Rajasthan (RLR 1983 P. 88) .(2) Yad Ram vs. State of Rajasthan (1988 RCC 267) .(3) Bhagwan Singh vs. State of Rajasthan (1990 RCC 565) .(4) Bhag Singh vs. State of Rajasthan (1991 RCC 95) .(5) Islam Mohammed vs. State of Rajasthan (1994 RCC 207) (6) Smt. Premlata vs. State of Rajasthan (S.B. Criminal IInd Bail Application No.3030/2002, decided on 28.2002 at Jaipur Bench) (7) Jetha Ram vs. State of Rajasthan, 1999 (1) RLW (Raj.) p. 283. 9. (i) In Mitthu vs. State of Rajasthan, reported in 2000 CrLR (Raj.) p. 483, this Court considered the question as to whether the Second Bail Application under Section 438 CrPC is maintainable or not and it was held that Second Bail Application is not maintainable. 9. (ii)In Suresh Chand vs. State of Rajasthan, reported in RLR 2001 (2) p. 757, the question as to whether the Second Bail Application under Section 438 CrPC is maintainable or not, this Court took a view that second bail application under Section 438 CrPC is not maintainable. 10. The learned Additional Advocate General Mr. Mohd. Rafique submits that apart from the aforesaid Judgment s of this Court, there are other Judgment s of other High Court wherein it has been held that the Second Bail Application under Section 438 CrPC is not maintainable. The Division Bench of the Kolkata High Court in Pawan Kumar Beriwal vs. State of West Bengal, reported in 1998 (4) Crimes 246 considered the issue as to whether Second Bail Application under Section 438 CrPC is maintainable or not? The Division Bench held that Second Bail Application for anticipatory bail is not maintainable. The Division Bench of Orissa High Court in Fkkri Ghosh @ Jitendra vs. State, reported in 1995 (1) Crimes p. 145, also considered the same issue and took a view the Second Bail Application for anticipatory bail is not maintainable. 11. The Division Bench held that Second Bail Application for anticipatory bail is not maintainable. The Division Bench of Orissa High Court in Fkkri Ghosh @ Jitendra vs. State, reported in 1995 (1) Crimes p. 145, also considered the same issue and took a view the Second Bail Application for anticipatory bail is not maintainable. 11. Learned Counsel for the petitioner submits that in the case of Smt. Premlata vs. State of Rajasthan (Supra), there is reference of Judgment of the Honble Supreme Court in Special Leave to Appeal (Criminal) No. 3243/2000, wherein the Honble Supreme Court has remanded the matter to consider the Second Bail Application. Learned Counsel submits that it was a case arising out of Second Bail Application under Section 438 CrPC itself . To examine the correctness of the submission of the learned Counsel for the petitioner and to see as to whether there is any Judgment of the Honble Supreme Court on the point, I called the original file of Smt. Premlata vs. State of Rajasthan (S.B. Criminal) Miscellaneous Second Application No. 3030/02) wherein, a photo stat copy of the Judgment of the Honble Supreme Court dated 29.2000 in Radha Mohan vs. State of Rajasthan (Special Leave Petition (Criminal) No. 3243/2000 is available. The order passed by Honble Supreme Court in above SLP reads as under:- "Upon hearing Counsel the Court made the following order : Without prejudice to the right of the petitioner to move the High Court for bail afresh, this Special Leave Petition is dismissed". The aforesaid order of the Honble Supreme Court is clear that the Honble Supreme Court did not consider the issue regarding the maintainability of the Second Bail Application under Section 438 CrPC and the Special Leave Petition was dismissed with the observation that without prejudice to the right of the petitioner to move the High Court for bail afresh, the Special Leave Petition was dismissed. Therefore, I have also examined the order dated 18.7.2000 passed in Radha Mohan vs. State of Rajasthan (S.B. Criminal Miscellaneous IIIrd Bail Application No. 2923/2000), against which the aforesaid Special Leave (Criminal) N 3243/2000 was preferred before the Honble Supreme Court. The order dated 18.7.2000 passed by this Court in S.B. Criminal Miscellaneous IIIrd Bail Application No. 2923/2000 reads as under:-"Mr. B.S. Chauhan, learned Counsel for the petitioner submits that he wants to withdraw this S.B. Criminal Miscellaneous III Bail Application. The order dated 18.7.2000 passed by this Court in S.B. Criminal Miscellaneous IIIrd Bail Application No. 2923/2000 reads as under:-"Mr. B.S. Chauhan, learned Counsel for the petitioner submits that he wants to withdraw this S.B. Criminal Miscellaneous III Bail Application. Hence, it is dismissed as withdrawn. " The aforesaid orders of this Court as well as of the Honble Supreme Court will show that neither this Court nor the Honble Supreme Court decided the issue involved in the present matter as to whether Second Bail Application under Section 438 CrPC is maintainable or not? 12. The reference of the aforesaid cases clearly show that so far as cases of Nahar Singh vs. State of Rajasthan (Supra), Yadram vs. State (Supra), Bhagwan Singh vs. State (Supra) Bhag Singh vs. State (Supra), Islam Mohd. vs. State (Supra) and Smt. Premlata vs. State (Supra) are concerned, although the Second and Third Bail Application under Section 438 CrPC were entertained by this Court but , in all the cases, this issue was not considered and decided as to whether a Second Bail Application or any subsequent Bail Application under Section 438 CrPC is maintainable or not? However, in the case of Ramgopal vs. State (Supra), Vishnu Nath Mathur vs. State (Supra), Babulal vs. State (Supra) are concerned, this issue was discussed, considered and decided as to whether the Second Bail Application under Section 438 CrPC is maintainable or not? This Court held that on new facts, changed circumstances, medical ground, the subsequent or Second Bail Application under Section 438 CrPC is maintainable. So far as Judgment of Mitthu vs. State (Supra) and Suresh Chand vs. State (Supra) are concerned, the issue was discussed, considered and decided and it was held that Second Bail Application under Section 438 CrPc is not maintainable. 13. Learned Counsel for the petitioner submits that the Judgment given in the cases of Mitthu vs. State (Supra) and Suresh Chand vs. State (Supra) should be treated as Judgment s per-incurium and it should be held that there is no contrary view on the issue and this second Bail Application should be treated as maintainable. He submits that in the case of Mitthu vs. State (Supra), the earlier Judgment of this Court given in the case of Ram Gopal vs. State (Supra), was not considered, therefore, it could be considered as Judgment per incurium. He submits that in the case of Mitthu vs. State (Supra), the earlier Judgment of this Court given in the case of Ram Gopal vs. State (Supra), was not considered, therefore, it could be considered as Judgment per incurium. The learned Counsel for the petitioner further submits that in Suresh Chand vs. State (Supra), the question under consideration was as to whether second anticipatory Bail Application before Sessions Judge, after rejection of the first by the High Court, is maintainable? He submits that question involved in the present matter is different than the question decided in the case of Suresh Chand vs. State (Supra). I have considered the above submission of the learned Counsel. The learned Single Judge of this Court in para 17 of the aforesaid Judgment has categorically held that after rejection of bail application under Section 438 CrPC before the High Court, Second Bail Application even before the High Court is not maintainable. In the case of Suresh Chand vs. State (Supra), the said Judgment given in the case of Ram Gopal vs. State (Supra) was considered and it was held that the said Judgment is hit by doctrine of per-incurium being rendered without noticing the mandate of Section 438 CrPC, in respect of fact situation of "accusation of non-bailable offence" which remains the same till the completion of investigation. The case of Mitthu vs. State (Supra) was considered in subsequent Judgment s namely Babulal vs. State (Supra) and Vishnu Nath Mathur vs. State (Supra) and it was held, that the case of Mitthu vs. State (Supra) was decided on the basis of facts of that particular case. However, the Judgment of Suresh Chand vs. State (Supra) was not considered in the case of Babulal vs. State (Supra) and Vishnu Nath vs. State (Supra). 14. The aforesaid discussion clearly reveals that all three Judgment s by learned Single Judges in the case of Ramgopal vs. State (Supra), Babulal vs. State (Supra) and Vishnunath Mathur vs. State (Supra) have held that subsequent or Second Bail Application under Section 438 CrPC is maintainable on new facts, changed circumstances or medical ground whereas, in other two cases namely, Mitthu vs. State (Supra) and Suresh Chand vs. State of Rajasthan (Supra), both by learned Single Judge, it has been has (sic) held that the Second Bail Application under Section 438 CrPC is not maintainable. The powers of Section 438 CrPC are not only exercised by the High Court but, by the Court of Sessions also and in view of the fact that there are two contrary view on the point and there is no Judgment by the Division Bench or Larger Bench of this Court or by the Honble Supreme Court. Therefore, I think fit and proper that this question should be decided by a Division Bench or by a Larger Bench. 15. I, therefore, direct the Deputy Registrar (Judicial) to place the matter before Honble the Chief Justice for constituting an appropriate Bench to decide the following question:-"Whether Second or subsequent Bail Application under Section 438 CrPC is maintainable or not?" 16. The file be put up before Honble the Chief Justice for constituting the appropriate Bench for authoritative pronouncement on the question formulated above.