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2010 DIGILAW 538 (CAL)

Sudip Sen v. STATE OF WEST BENGAL

2010-05-17

AMIT TALUKDAR, RAGHUNATH RAY

body2010
JUDGMENT 1. Scorched by the heat and morphed into the dust raised in the trail of the Full Bench judgment of our Court in Maya Rani Guin and etc. vs. State of West Bengal, 2003 Cr. LJ 1: 2002 C Cr. LR (Cal) 733, several applications under section 438, Cr. PC does not pass Muster, simply, for the reason those are second in line. 2. As in life, all seconds do not occupy a pristine position that of a first, so is the case of an application under section 438, Cr. PC more so muffled in the gossamer white of the Full Bench decision in Maya Rani Guin and etc. vs. State of West Bengal (supra). Should those applications be allowed to bite humble dust on account of such situation? Is exactly the question that falls for consideration in this batch of applications. 3. Shri Ashish Kumar Sanyal, learned Senior Counsel for the petitioner in C.R.M. No. 5123 of 2010 as well as in C.R.M, No. 4559 of 2010 and Ms. Rupna Bhattacharjee (Ray) for the petitioner in C.R.M. No. 4457 of 2010 has argued their respective cases in support of the maintainability of such applications. We would reproduce their respective submissions in seriatim. 4. Shri Sanyal has argued that Full Bench decision in Maya Rani Guin and etc. vs. State of West Bengal (supra) is required to be revisited for the following reasons:- (I) The Full Bench was considering from a particular angle as to whether a second application would be maintainable after the same was disposed of and the person had went to surrender before the Regular Court and his prayer for bail not having been granted, he approached this Court once again. As such, according to Shri Sanyal, Full Bench was not deciding a case of strait-jacket prayer in respect of a second application. (II) The view of the Full Bench in Maya Rani Guin and etc. vs. State of West Bengal (supra) concentrated on accusation only, whereas there can be cases where at the first instance, the position that governed the decision of the Court, while arriving at its conclusion in respect of a prayer made under section 438 Cr. PC, may have undergone a substantial change; both legally and factually which made the entire situation amenable to change. Developing his argument, Shri Sanyal dwelt on the question of eligibility and/or entitlement. 5. PC, may have undergone a substantial change; both legally and factually which made the entire situation amenable to change. Developing his argument, Shri Sanyal dwelt on the question of eligibility and/or entitlement. 5. According to Shri Sanyal, first time by right and second time for failure of discovery of material already on record. Drawing analogy from these two situations, Shri Sanyal was of the view that the petitioner was entitled statutorily to seek refuge under section 438, Cr. PC at the first occasion whereas in the second instance, he can rely on discovery of new materials, which is already on record, after his earlier prayer was spurned. 6. Shri Sanyal proceeded further to submit. so long a person is not taken into custody, his right subsists to move before the Court for being admitted with an order under section 438, Cr. PC, as it is the question of his liberty, which is at stake and on account of some new materials, one can buttress his claim at a subsequent stage. 7. Shri Sanyal waxed much eloquence with regard to the factum of apprehension of arrest, which existed at the stage anterior to filing of the first application and as of posterior to the disposal of the same, even at the second stage. 8. Shri Sanyal, by way of illustration, submitted that in the case diary, there may have been a document, which, if looked into, may have persuaded the Court at the first instance to come to a reason other than the one, which was arrived at resulting in refusal of the prayer of a person made under section 438, Cr. PC. 9. Conversely, Shri Sanyal was of the view, there may be some unimpeachable document, which is, not disputed by the prosecution but was not made available at the first instance, when his prayer was turned down. Can he not being armed with the same, come up once again to have the decision revisited? 10. Referring to the question of a qualitative change in the situation, Shri Sanyal, would be of the view that altogether, a person cannot be shut out from the liberty of moving a second application under section 438, Cr. PC being guided by the blind logic of the Full Bench decision in Maya Rani Guin & etc. vs. State of West Bengal (supra). He was of the view the same passes sub silentio. PC being guided by the blind logic of the Full Bench decision in Maya Rani Guin & etc. vs. State of West Bengal (supra). He was of the view the same passes sub silentio. In support of his contention he referred to the decision of Arnit Das vs. State of Bihar, AIR 2000 SC 2264 : 2000 C Cr. LR (SC) 336. 11. Reading from the Constitution Bench decision in Gurbaksh Singh Sibbia etc. vs. State of Punjab, AIR 1980 SC 1632 , he was of the view that the ratio of the Constitution Bench decision in Gurbaksh Singh Sibbia etc. vs. State of Punjab (supra), was not correctly appreciated by the Full Bench in Maya Rani Guin & etc. vs. State of West Bengal (supra). 12. He further took us through the Full Bench decision of the Jaipur Bench of the Rajasthan High Court in Ganesh Raj vs. State of Rajasthan & Ors., reported in 2005 Cr. LJ 2086, where our Full Bench decision in Maya Rani Guin & etc. vs. State of West Bengal (supra) case, was taken into account and it was held that a second application under section 438 Cr. PC was maintainable. 13. Shri Sanyal stressed heavily on the Full Bench decision of the Jaipur Bench of the Rajasthan High Court in Ganesh Raj vs. State of Rajasthan (supra) and submitted that we can entertain a second application on account of the said decision. 14. Putting much emphasis on the decision of Hon'ble Apex Court in Rauindra Saxena vs. State of Rajasthan, reported in 2010(1) SCC 684 : 2010(1) C Cr. LR (SC) 226, Shri Sanyal submitted that the second application was permissible. 15. From the first paragraph of the Supreme Court decision in Rauindra Saxena vs. State of Rajasthan (supra), he showed that even the third application was easily maintainable. 16. Ms. Bhattacharjee, to a large extent, adopted Shri Sanyal. She however, read out from paragraph 7 of the decision of Supreme Court in Bharat Chaudhary & another vs. State of Bihar & another, 2003 C Cr. LR (SC) 939, to illustrate her point that very "object and purpose behind enactment of the provisions of section 438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention." 17. Learned Public Prosecutor with Shri Basu, Shri Ganguly and Shri Kallol Mondal, could not join issue with his counterpart. 18. LR (SC) 939, to illustrate her point that very "object and purpose behind enactment of the provisions of section 438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention." 17. Learned Public Prosecutor with Shri Basu, Shri Ganguly and Shri Kallol Mondal, could not join issue with his counterpart. 18. Learned Public Prosecutor submitted, since exercise of power under section 438, Cr. PC, by the Court, is for the safeguard of individual liberty against onslaught of personal freedom, the same cannot be snatched away by putting barriers with regard to the number of occasions one can avail of the same till such time he is formally intercepted. 19. Learned Public Prosecutor also took refuge to paragraph 1 of Rauindra Saxena vs. State of Rajasthan's case (supra) and was of the opinion that second application was very much maintainable in the instance of change in the situation. 20. In the serendipity of the Full Bench decision of Maya Rani Guin & etc. vs. State of West Bengal (supra), we have to assess the impact made in this application. 21. We can easily recuse ourselves from the situation by citing the doctrine of stare decisis and of binding precedent and shy away from the quagmire of the Full Bench decision of our Court. 22. But, in our opinion, that would not be a just situation. In Court, we are always on God's Errand and must respond to our conscience and citing the claptrap of certain situations which are itself vulnerable, if we shy away from a situation which requires consideration would not be an apt position. 23. The authority of a Full Bench decision has binding effect on us sitting in a Division Bench. We are bound to abide by the same in the absence of exceptions by way of per incuriam or the doctrine of sub silentio. Otherwise, it would result in judicial anarchy, where Courts of different strength does not abide by the decisions of a larger strength. Bringing Cinderella to dance 24. Profitably, we may quote from the observations made in paragraph 19 of the decision of the Supreme Court in Mahadeolal Kanodia vs. Administrator General of W.B., 1960(3) SCR 578 , wherein it was held:- "If one thing is more necessary in law than any other thing, it is the quality of certainty. Bringing Cinderella to dance 24. Profitably, we may quote from the observations made in paragraph 19 of the decision of the Supreme Court in Mahadeolal Kanodia vs. Administrator General of W.B., 1960(3) SCR 578 , wherein it was held:- "If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear, if judges of coordinate jurisdiction in a High Court start overruling one another's decisions." 25. Forty-seven years after the above decision, the Supreme Court again in the decision of U.P. Gram Panchayat Adhikari Sangh & other vs. Daya Ram Saroj & Ors., 2007(2) SCC 138 , has held:- "Judicial discipline is self-discipline. It is an inbuilt mechanism in the system itself. Judicial discipline demands that when the decision of a Coordinate Bench of the same High Court is brought to the notice of the Bench, it is to be respected and is binding, subject of course, to the right to take a different view or to doubt the correctness of the decision and the permissible course then open is to refer the question or the case to a larger Bench. This is the minimum discipline and decorum to be maintained by judicial fraternity." 26. The Constitution Bench in Central Board of Dawoodi Bohra Community & another vs. State of Maharashtra & another, reported in 2005(2) SCC 673 , reaffirmed the doctrine of binding precedents, as it has the merits of promoting certainty and consistency in judicial system and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming its daily affairs. 27. This position has also been clarified very recently by a Three-Judge Bench decision of the Supreme Court in Official Liquidator vs. Dayanand & other, JT 2008(11) SC 467, wherein it was held:- "70. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the Courts at the grass root will not be able to decide as to which of the judgment lay down the correct law and which one should be followed. We may add that in our constitutional set up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the Constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important Constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is the sine qua non for effective and efficient functioning the judicial system. If the Courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the Constitutional principle by those who are required to lay down the law." 28. As a fall out of the aforesaid discussion in the light of the decisions of Supreme Court in 1) U.P. Gram Panchayat Adhikari Sangh & other vs. Daya Ram Saroj & other (supra), 2) Central Board of Dawoodi Bohra Community & another vs. State of Maharashtra & another (supra) and 3) Official Liquidator vs. Dayanand & other (supra) we are bound by the law of binding precedents sitting in a smaller faction by the sweep of a Full Bench decision. 29. 29. This is one aspect of the matter. 30. With the march of time and progress in society, law also develops in response to societal needs and exigencies. Sometimes spilling over the banks of jural stream, new challenges and new angles are thrown open, which, also, is required to be taken care of. Wear & tear of time also impinges a judicial decision with the eclipse of the situation unless it is classics locus. 31. We, in a Division Bench, are bound by the fall out of the ratio of a Full Bench decision. This is the settled position of law. We cannot deviate from the same. It would result in judicial anarchy and militate against judicial discipline, which is one of the sine qua non of the sound health of this institution. 32. But, as we cannot break bread with the fall out of the decision of the Full Bench in Maya Rani Guin & etc. vs. State of West Bengal (supra) we are required to take the extra mile, which would make all the difference in our opinion. 33. In the maze of the mind, we are unable to persuade ourselves to the primordial finding of the Full Bench in paragraph 21, wherein the speaking voice of the said Full Bench decision Ansari" J., held:- "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." 34. But simply, our notion that we cannot subscribe to the authority of the Full Bench (read a larger Bench), which is binding on us cannot make any difference in the euphoria of the doctrine of stare decisis. But we feel that the ratio of the decision of Maya Rani Guin and etc. vs. State of West Bengal (supra) passes sub silentio. A narrow and restrictive use of the word accusation has been adopted by the Full Bench in Maya Rani Guin & etc. vs. State of West Bengal (supra). 35. If we make a purposive construction of the word accusation in the context of section 438, Cr. PC, we would be of the view that the said word cannot be read isolatedly torn out of context. vs. State of West Bengal (supra). 35. If we make a purposive construction of the word accusation in the context of section 438, Cr. PC, we would be of the view that the said word cannot be read isolatedly torn out of context. It should be understood conjunctively and not disjunctively, prefixed by the word arrested on and suffixed by the words having committed a non-bailable offence, he may apply to the. 36. Now, the anterior phrase, a person has reason to believe followed by the key word accusation which has haunted Ansari, J. to arrive at his conclusion for the Full Bench in Maya Rani Guin & etc. vs. State of West Bengal (supra), cannot be interpreted in any other sense than the one described in section 26 of the Indian Penal Code. 37. In the trajectory of the Full Bench decision in Maya Rani Guin's case (supra), the grinding halt put by Ansari, J. as to second application, is required to be appreciated in the light of the word reason to believe as used by the Legislatures in their wisdom into provisions of section 438 Cr. PC. 38. Mere fear is not belief. There must be something more tangible to go by, on the basis of which a Court can examine the objectivity of such apprehension as to be genuine. 39. Necessarily, a question arises in the mind of any prudent man that will the reason to believe be foreclosed by applying the rigid rules of the Full Bench decision in Maya Rani Guin & etc. vs. State of West Bengal (supra)? 40. According to Black's Law Dictionary, The word accusation means a formal charge of criminal wrong doing. In other words, it is indictment. There may be existence of accusation before registration of a formal FIR. Even after registration of the FIR, where upon the accusation may get strengthened followed by submission of the report in final form, where the accusation will become more stronger. From strong 'stronger' to strongest the concept of accusation subsists till it is said omega at the trial. In such paradigm, the concept of accusation was never viewed by the Full Bench in Maya Rani Guin & etc. vs. State of West Bengal (supra). From strong 'stronger' to strongest the concept of accusation subsists till it is said omega at the trial. In such paradigm, the concept of accusation was never viewed by the Full Bench in Maya Rani Guin & etc. vs. State of West Bengal (supra). The Full Bench, with much respect, we must say, was bogged down with the situation that when accusation remains the same, there cannot be any revival of reasons to believe or apprehension cannot undergo any change. 41. After all, what consists of an accusation? In the event there are certain situations which changes the basic framework of the same, can it not be said that much of its shin is lost from its earlier point of time? That apart, the entire Full Bench riled under the question that after obtaining an order of anticipatory bail, when the petitioner goes to surrender before the Magistrate, what would be the situation in the event such surrender is not accepted and he is made to approach this Court once again. 42. From the Glass House of such a situation, the entire Full Bench decision in Maya Rani Guin & etc. vs. State of West Bengal case (supra) was projected. 43. The word "anticipatory bail" has not been defined in the Code. It is popularly used in context of a pre-arrest bail as understood within the ambit of section 438, Cr. PC. 44. We may refer to the decision of the Supreme Court in Mumbai Kamgar Sabha vs. Abdulbhai Faizullabhai & other, reported in 1976(3) SCC 832 , wherein paragraph 38 it was held:- "It is trite, going by anglophonic principles, that a ruling of a superior Court is binding law. It is not a scriptural sanctity but is of ratio wise luminosity within the edifice of facts where the judicial lamp plays the legal flame. Beyond those walls and de hors the milieu we cannot impart eternal vernal value to the decision, exalting the doctrine of precedents into a prisonhouse of bigotry, regardless of varying circumstances and myriad developments. Realism dictates that a judgment has to be read subject to the facts directly presented for consideration and not affecting those matters which may lurk in the record." 45. Realism dictates that a judgment has to be read subject to the facts directly presented for consideration and not affecting those matters which may lurk in the record." 45. Similarly, dwelling on the question of principle of sub silentio the Supreme Court in State of U.P. vs. Synthetics and Chemicals Ltd., 1991(4) SCC 139 , has held:- "Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law." 46. As such, we also draw sustenance from the decision of Supreme Court in Arnit Das vs. State of Bihar, reported in AIR 2000 SC 2264 , cited by Shri Sanyal that a decision not expressed, not accompanied by reasons and not proceeding on conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect. 47. As we are unable to bind ourselves within the sweep of the Full Bench decision in Maya Rani Guin & etc. vs. State of West Bengal (supra), we feel the decision should be revisited and in a Division, Bench, the only recourse open before us, is to refer the question for decision before a larger Bench. 48. Accordingly, we deem it fit to submit it before The Hon'ble The Chief Justice for decision by a larger Bench of the questions, that has been formulated by us:- (A) Even though the Full Bench decision of the Jaipur Bench of the Rajasthan High Court in Ganesh Raj vs. State of Rajasthan (supra), is at best, of a persuasive value, we feel that since even after taking note of Full Bench decision of our Court in Maya Rani Guin & etc. vs. State of West Bengal (supra), a contrary decision thereto was arrived at-altogether, ratio of the Full Bench decision of the Jaipur Bench of the Rajasthan High Court in Ganesh Raj vs. State of Rajasthan (supra) should not be frittered away. (B) The Full Bench in Maya Rani Guin's case (supra), was preliminarily dealing with a situation where, upon grant of an order under section 438, Cr. PC, the petitioner went to submit himself before the regular Court. But he was not taken into custody on the basis of a fiction of law. He again chose to seek similar relief. (B) The Full Bench in Maya Rani Guin's case (supra), was preliminarily dealing with a situation where, upon grant of an order under section 438, Cr. PC, the petitioner went to submit himself before the regular Court. But he was not taken into custody on the basis of a fiction of law. He again chose to seek similar relief. (C) Whereas the question before us as to whether in the event there is some unimpeachable document or some unassailable situation very much existing at the time the application was refused at the first instance not being brought to the notice of the Court. Will the same absolutely forbade the applicant from retrieving his lost fortune? (D) The interpretation of Ansari, J. in paragraph 21 of the decision of Maya Rani Guin and etc. vs. State of West Bengal (supra) that 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 on the premises founded in paragraph 20. 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 also requires a fresh look as to whether in a given case there may be a change in the situation and mollification of the accusations upon submission of the report in final form at the instance of the investigating agency. (E) The Division Bench decision of Madhya Pradesh High Court in Imratlal Vishwakarma & other vs. State of U.P., reported in 1997(1) Crimes 289 at paragraph 13 has held:- "However, in our opinion, no such fetters can be put or applied on the second petition. Second petition filed under section 438, Cr. PC 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. PC 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." The said Division Bench of Madhya Pradesh High Court in Imratlal Vishwakarma & other vs. State of U.P. (supra) took cue from an earlier authority, which relied on the decision of Supreme Court in Babu Singh vs. State of U.P., 1978(1) SCC 579 and applied the principles laid down in the said decision. (F) Both, the Full Bench decision of Jaipur Bench of the Rajasthan High Court in Ganesh Raj vs. State of Rajasthan (supra) as well as the Division Bench decision of Madhya Pradesh High Court in Imratlal Vishwakarma & other vs. State of U.P (supra) have read into the Constitution Bench decision of Gurbaksh Singh Sibbia etc. vs. State of Punjab (supra) and it did not fall in line with the views expressed by the Ansari, J. for the Full Bench in Maya Rani Guin's case (supra). (G) Furthermore, the question raised by Shri Sanyal that till such time a person is intercepted, his right to move an application under section 438 subsists, which has also not been faulted by the learned Public Prosecutor for the State, has to be understood in view of the decision of Imratlal Vishwakarma & other vs. State of U.P. (supra), where the Division Bench of the Madhya Pradesh High Court held there is no statutory prohibition like the prohibition contained in section 397(3) barring second petition under section 438, Cr. PC and felt that the Court should avoid reading words in to said section which are not to be found therein. (H) Although, on an absolute different context, the Full Bench in Maya Rani Guin and etc. PC and felt that the Court should avoid reading words in to said section which are not to be found therein. (H) Although, on an absolute different context, the Full Bench in Maya Rani Guin and etc. vs. State of West Bengal (supra), did not notice the earlier Full Bench decision in Diptendu Nayek vs. State of West Bengal, reported in 1989(1) CLT (HC) 193, where it was deciding the question with regard to the concurrent powers of the High Court and the Sessions Court in relation to exercise of power under section 438, Cr. PC. (I) In the event, the Full Bench had taken note of Babu Singh & other (supra) case, where Krishna Iyer, J., writing the judgment of the said decision, while considering the question of efficacy of bail held in pargaraph 7:- "The whole issue, going by decisional material and legal literature, has been relegated to a twilight zone of the criminal justice system. Courts have often acted intuitively or reacted traditionally, so much so the fate of applicants for bail at the High Court level and in the Supreme Court, has largely hinged on the hunch of the bench as an expression of judicial discretion. A scientific treatment is the desideratum." In paragraph 8, Their Lordships further held:- "The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden on the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process." (J) The Constitution Bench in Kartar Singh vs. State of Punjab, 1994(3) SCC 569 and in State of M.P. & another vs. Ram Kishna Balothia & another, reported in 1995(3) SCC 221 : 1995 C Cr. LR (SC) 222, has held that liberty reserved under section 438, Cr. PC, is a statutory right. It does not flow from the sanctum sanctorum of Article 21. Since it is a statutory right, how the right is to be exercised? Is a question, which was not answered by Ansari, J. on behalf of the Full Bench. (K) The Constitution Bench in Gurbaksh Singh Sibbia etc. PC, is a statutory right. It does not flow from the sanctum sanctorum of Article 21. Since it is a statutory right, how the right is to be exercised? Is a question, which was not answered by Ansari, J. on behalf of the Full Bench. (K) The Constitution Bench in Gurbaksh Singh Sibbia etc. vs. State of Punjab (supra) is not only a classics locus, but is, perhaps, the magna carta in the field of pre-arrest bail as understood within the ambit of section 438, Cr. PC of the new Code of 1973. Ansari, J., speaking voice of the Full Bench in Maya Rani Guin and etc. vs. State of West Bengal (supra), in our considered view, did not make a wholesome perusal of the Constitution Bench decision. Particularly, paragraphs 7, 13, 20 and 35 of the Constitution Bench decision in Gurbaksh Singh Sibbia etc. vs. State of Punjab (supra) was not given its due regard by Ansari, J. while writing the judgment for the Full Bench in Maya Rani Guin's case (supra). The proposition, which has been rightly argued by Shri Sanyal so long as the applicant has not been arrested and as discussed by the Constitution Bench, did not receive its proper appreciation in the hands of Ansari, J. for the Full Bench in Maya Rani Guin and etc. vs. State of West Bengal (supra). (L) Even though Ravindra Saxena's case (supra) cannot be a obiter dictum as shown by Shri Sanyal and relied upon by the learned Public Prosecutor, we have to take care of the fact that the Supreme Court after noticing that it was a third application, entertained the matter on merit and allowed the application, which was earlier refused by the High Court. As such, in the twilight of the decision of Ravindra Saxena vs. State of Rajasthan (supra) the Full Bench decision in Maya Rani Guin and etc. vs. State of West Bengal (supra) stands partially eclipsed. It requires to be pondered as to whether all, the curt finding arrived at in paragraph 21 by Ansari, J. for the Full Bench in Maya Rani Guin and etc. vs. State of West Bengal (supra) should still hold the field? (M) Wimpled in the longing shadows of K.L. Verma vs. State, 1998(9) SCC 348 , the Full Bench in Maya Rani Guin and etc. vs. State of West Bengal (supra) should still hold the field? (M) Wimpled in the longing shadows of K.L. Verma vs. State, 1998(9) SCC 348 , the Full Bench in Maya Rani Guin and etc. vs. State of West Bengal (supra) so long it held the fort. Since K.L. Verma's case (supra) was partially eclipsed by the finding of the Supreme Court in Sunita Devi vs. State of Bihar & another, 2005(1) SCC 608 : 2005(1) C Cr. LR (SC) 239, as per incuriam obviously, the teeth in the Full Bench decision of Maya Rani Guin & etc. vs. State of West Bengal (supra) is wilted in the puddle of once upon a time situation. (N) Adhering to the logistics of Full Bench decision in Maya Rani Guin & etc. vs. State of West Bengal (supra), in view of the changed situation, would be listening to the old wives tale. 49. After formulating the aforesaid questions for determination before the August Body of Their Lordships of a Larger Bench, we feel, we would be required to look back to see ahead on the pronouncement of the Full Bench decision in Maya Rani Guin and etc. vs. State of West Bengal (supra). 50. While arriving at our conclusion, we have also stumbled upon an unreported Division Bench decision of our Court in Jagdish Sarda vs. State of West Bengal, in C.R.M. No. 2136 of 2007, disposed of on March 9th, 2007, where the Division Bench decision of the Madhya Pradesh High Court in Imratlal Vishwakarma & other vs. State of U.P. (supra), The Full Bench decision of Jaipur Bench of the Rajasthan High Court in Ganesh Raj vs. State of Rajasthan (supra) and The Madras High Court decision in the case of Radhakrishnan alias R.K. vs. State & another, reported in 2003 Cr. LJ 4167, have been put in the backburner. 51. The said Division Bench expressed its inability "to circumvent the ratio of the Full Bench decision of Maya Rani Guin and etc. vs. State of West Bengal (supra)" on the premises that the subsequent filing of a report could not change the nature of accusations leveled against the petitioner as the conviction remains the same. 52. Sucked in the sweep of the Full Bench decision of Maya Rani Guin and etc. vs. State of West Bengal (supra)" on the premises that the subsequent filing of a report could not change the nature of accusations leveled against the petitioner as the conviction remains the same. 52. Sucked in the sweep of the Full Bench decision of Maya Rani Guin and etc. vs. State of West Bengal (supra), the Division Bench in Jagdish Sarda vs. State of West Bengal (supra) has held:- "As there is no change in the accusation if we respond to the prayer of the present petitioner for admitting him with an order under section 438 of the Code of Criminal Procedure we would, in fact, be sitting in appeal over the decision of another Division Bench of co-extensive jurisdiction." 53. Since we have already doubted the correctness of Ansari, J. view speaking on behalf of the Full Bench in Maya Rani Guin and etc. vs. State of West Bengal (supra) the Division Bench in Jagdish Sarda vs. State of West Bengal's (supra) case, which has practically been sulked with the impact of the Full Bench decision in Maya Rani Guin and etc. vs. State of West Bengal's (supra) case also necessarily fall in the scanner of our reference. 54. Prior to saying omega, we still feel that something remains left out, although, we have submitted the points before the First Bench for constitution of a larger Bench to decide the question, as surfaced, as aforesaid. 55. Reference by Shri Sanyal to the decision of Rauindra Saxena vs. State of Rajasthan (supra) in support of this stand that second application would be maintainable, in our opinion, does not cut any ice. The Summit Court was dealing with a case from Rajasthan where the High Court had already pronounced a Full Bench decision in support thereof. As such, Rauindra Saxena's case (supra), in our opinion, cannot be an obiter dictum• for the proposition forwarded by Shri Sanyal. 56. Yet, we would feel, as indicated hereinabove, since the Supreme Court has considered the question of an application under section 438, Cr. PC, which did not have any luck for previous two occasions; as to whether even after the said decision in Rauindra Saxena vs. State of Rajasthan (supra), the impact of the Full Bench in Maya Rani Guin & etc. vs. State of West Bengal (supra) be felt to be strong enough to put of second application under the knife? 57. PC, which did not have any luck for previous two occasions; as to whether even after the said decision in Rauindra Saxena vs. State of Rajasthan (supra), the impact of the Full Bench in Maya Rani Guin & etc. vs. State of West Bengal (supra) be felt to be strong enough to put of second application under the knife? 57. Similarly, Ms. Bhattacharjee's reference to the decision of Supreme Court in Bharat Chaudhary vs. State of Bihar & another (supra), we are afraid, perhaps, of no avail to her. It was an authority on the point that application under section 438, Cr. PC would be maintainable even after a report in final form has been submitted. Refuge by her to paragraph 7 of the said decision would not be a just desert in the given fact situation of the instant case. 58. Registry is kindly requested to place the entire file before the First Bench.