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2008 DIGILAW 973 (CAL)

Maheshwari Kumari v. The State

2008-10-01

PRASENJIT MANDAL, PRATAP KUMAR RAY

body2008
JUDGMENT: RAY, J (1.) Heard the learned Advocates appearing for the parties. (2.) This is an application under Section 438 of the Code of Criminal Procedure praying for grant of anticipatory bail. It is not a virgin case under the said section but in respect of the complaint which was transformed in the First Information Report by initiating a criminal proceeding, the petitioner-accused therein moved the Court of learned Sessions Judge, Andaman and Nicobar Islands, Port Blair an application seeking relief under Section 438 of the Code of Criminal Procedure which stood rejected on 3rd January, 2006 in Criminal Misc. Case No.55 of 2005 and subsequently he moved another application under Section 438 of the Code of Criminal Procedure registered as Criminal Misc. Case No. 103 of 2008 before the said Court which also stood rejected on the ground of maintainability as no second application was maintainable after rejection of the first one. (3.) After that, this is the third attempt by the petitioner-accused though the learned Advocate submitted that it is the first attempt in the High Court to move the matter under Section 438 of the Code of Criminal Procedure. In support of maintainability of this application, a Full Bench judgment of the Rajasthan High Court has been relied upon which was passed in the case of Ganesh Raj v. State of Rajasthan and Ors., reported in 2005 Cri. LJ 2086. Mr. Mandal, learned Advocate appearing for the State has submitted that it is a settled legal position that no second application seeking anticipatory bail under Section 438 of the Code of Criminal Procedure is maintainable once the first application is rejected. It is further contended that the Calcutta High Court by Full Bench decision held accordingly in the case of Maya Rani Guin and etc. v. State of West Bengal, reported in Cri. LJ 2003 page 1. (4.) The Full Bench judgment of Rajasthan High Court as relied upon by the learned Advocate for the appellant was on the logic by answering the maintainability question of second anticipatory application by applying the concept of right to freedom which could be the basic foundation to deal with the bail application under Section 439 of the Code of Criminal Procedure. The Rajasthan High Court has applied a decision of the Supreme Court passed in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav, reported in AIR 2005 SC 921 on the maintainability of second or third application seeking bail under Section 437 and/or 439 of the Code of Criminal Procedure as the case may be. (5.) On a reading of all the judgments aforesaid, the following points emerge:-(a) In Section 437 or 439 of the Code of Criminal Procedure as the case may be in respect of respective Court concerned as statute has prescribed, it is not only a mere statutory provision for granting bail to the accused in custody but it is also contoured by as well as insulated by the constitutional provision of Article 21 of the Constitution of India namely, right to live guaranteed by the Constitution on special emphasize of right to liberty. Deprivation of right to liberty in terms of Article 21 is required to be scrutinized very carefully and the constitutional right of liberty should be protected jealously by the Court of law. On the reflection of the said acid test, the Supreme Court in the case of Kalyan Chandra Sarkar (supra) held that successive bail application is maintainable as right to liberty is a specious right of a human being. (b) So far as the anticipatory bail is concerned under Section 438 of the Code of Criminal Procedure, it has no element of constitutional guarantee and/or constitutional protection as Article 21-of the Constitution of India has no applicability herein. Hence this provision merely a statutory provision providing a relief to the accused person who apprehends arrest in connection with a non- bailable case by satisfying the statutory condition, reasons to believe or apprehension of arrest (c) The order as is passed in an application under Section 438 of the Code of Criminal Procedure is a final order. Once it is a final order, the Section 362 of the Code of Criminal Procedure, 1973 becomes applicable in such a situation which debars the review of any order/judgment save and except a scope of such review to correct clerical and/or arithmetical error. (6.) All the aforesaid points were considered by the Apex Court as well as by the Full Bench of Calcutta High Court. (6.) All the aforesaid points were considered by the Apex Court as well as by the Full Bench of Calcutta High Court. The Apex Court in the case of Hari Singh Mann v. Har Bhajan Singh Bagwan, reported in 2001 (1) SCC 169 corresponding to 2001 Cr.LJ 128 held that "the order granting or refusing to grant anticipatory bail application is a final order and entertainment of second application essentially require a review of the earlier order and such application is barred by the provision contained in Section 362 of the Code of Criminal Procedure". The ratio decidendi of the said case of Hari Singh Mann (supra) on the maintainability question of second anticipatory bail application after rejection of the first one now holding the field and it has not been disturbed by the Apex Court. The Full Bench of the Calcutta High Court in the case of Maya Rani Guin and etc. v. The State of West Bengal, reported in 2003 Cr.LJ page 1 had followed the said ratio of Hari Singh Mann (supra) and held that entertaining of the second application for anticipatory bail amounts to review or reconsideration of the earlier order when the accusation remains unchanged, which is a sine quo non of initiation of the criminal proceeding, which would fail to satisfy the conditions "reasons to believe" or "apprehension of arrest". It is accordingly held that 2nd application of anticipatory bail even if there is new circumstances developed after rejection or dismissal of the earlier order, is not maintainable. (7.) We are bound by the views expressed by the Full Bench of the Calcutta High Court as well as the judgment delivered by the Apex Court in Hari Singh Mann (supra). The judgment of the Rajasthan High Court, as has been referred to, is also on the ratio of the point that second application seeking anticipatory bail under Section 438 of the Code of Criminal Procedure would be maintainable if and only if there is a change in the fact situation or in law which mandates the Court to interfere with the earlier view and/or where the earlier view on application of those factors became obsolete. The ratio of the said judgment of Rajasthan High Court in the case of Ganesh Raj (supra) also does not support the point that the second application seeking anticipatory bail is maintainable in all and every case. The ratio of the said judgment of Rajasthan High Court in the case of Ganesh Raj (supra) also does not support the point that the second application seeking anticipatory bail is maintainable in all and every case. (8.) Having regard to the aforesaid findings and/or observations, we are of the view, relying upon the Full Bench judgment of Calcutta High Court in Maya Rani Guin (supra) and the Supreme Court views in Hari Singh Mann (supra) that the present application is not maintainable as it is a third application under Section 438 of the Code of Criminal Procedure after rejection of ealier two applications under the said provision moved before the learned Sessions Judge, Andaman and Nicobar Islands, Port Blair. This application is, accordingly, misconceived and stands dismissed.