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2023 DIGILAW 449 (PNJ)

Manjinder Kaur v. State of Punjab

2023-01-30

ALOK JAIN, AUGUSTINE GEORGE MASIH

body2023
Judgment Mr. Augustine George Masih, J. These petitions have been referred to the Division Bench in the light of conflicting judgments on the aspect and to clarify the issue of maintainability of second anticipatory bail application when the first application has been dismissed as withdrawn. 2. The question, therefore, which requires to be considered and answered is “whether a second anticipatory bail application under Section 438 Cr.P.C. is maintainable when the first one filed by the petitioner has been withdrawn?” 3. Before proceeding to answer this question, it would be appropriate to understand the object and reasons for introduction of Section 438 Cr.P.C. under which the powers have been conferred upon the High Court as well as the Sessions Court to issue direction that in the event of arrest of a person, who has approached the Court under this section having reason to believe that he may be arrested on accusation of having committed non-bailable offence, shall be released on bail. The term ‘anticipatory bail’ does not find mention in the statute, however, reference thereto is being made in the reports of the Law Commission and, therefore, is conveniently understood giving a leverage to a person to apply for bail in anticipation of arrest, meaning thereby that there is no question of release on bail unless the person is arrested. The section itself illustrates the facts which need to be taken into consideration by the Court while considering such an application, which would have been moved by a person apprehending arrest. The Court has also been conferred with the power to impose conditions in the given facts and circumstances of the case as it may think fit. It may be added here that the High Court as well as the Court of Sessions can pass an interim order for grant of anticipatory bail, however, notice is mandated to be issued to the prosecuting agency/Public Prosecutor, who should be given a reasonable opportunity of being heard before an application is finally heard by the Court and decided. The discretion obviously is that of the Court to grant interim benefit or to reject the same at the very outset. 4. The object of anticipatory bail is to relieve person from unnecessary apprehension or disgrace. The discretion obviously is that of the Court to grant interim benefit or to reject the same at the very outset. 4. The object of anticipatory bail is to relieve person from unnecessary apprehension or disgrace. It is an extraordinary power conferred upon the Superior Courts, which, to some extent, intrudes into the affair of investigation of crime requiring the Court to be conscious and circumspect in exercising such power of discretionary nature. All circumstances under which such discretion can be exercised by the Court cannot be spelt out and, therefore, the legislature in its wisdom has left it at the discretion of the Court to exercise such power in the light of the circumstances of each case. In other words, it can be said that anticipatory bail is a device to secure the individual’s liberty which does not mean giving a passport for commission of crimes or a shield against any or all kind of accusations likely or unlikely. Courts have been loath to exercise its powers under Section 438 Cr.P.C. when it comes to a conclusion that there is no harassment or vindictive action against the person who has approached the Court or someone was falsely implicating such person(s) to drag him/them into criminal prosecution with a view to damage the reputation of such person(s). Courts have even observed that anticipatory bail may be granted normally to avoid extreme hardship and inconvenience or harassment by the investigating agency to a person, who may appear to be innocent and law abiding citizen, prima facie found falsely or malafidely implicated in a non-bailable offence arising out of personal, political or other vendetta. What can, therefore, be safely concluded is that the power conferred under Section 438 Cr.P.C. on the Superior Courts is extraordinary in nature and such power should be used wisely with due circumspection and nothing beyond that. 5. No inflexible guidelines or straitjacket formula can be spelt out for grant or refusal of anticipatory bail in consonance with the legislative intent. The grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. Hon’ble Supreme Court in the Constitution Bench judgment in Gurbaksh Singh Sibbia etc. 5. No inflexible guidelines or straitjacket formula can be spelt out for grant or refusal of anticipatory bail in consonance with the legislative intent. The grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. Hon’ble Supreme Court in the Constitution Bench judgment in Gurbaksh Singh Sibbia etc. Versus State of Punjab, AIR 1980 SC 1632 has observed that the High Court or the Court of Sessions is to exercise their jurisdiction under Section 438 Cr.P.C. by a wise and careful use of their discretion, which by their long training and experience, they are ideally suited to do. The Hon’ble Supreme Court in Siddharam Satlingappa Mhetre Versus State of Maharashtra, AIR 2011 SC 312 has culled out following factors and parameters, which can be taken into consideration while dealing with the anticipatory bail:- (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused’s likelihood to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. (vi) Impact of grant of anticipatory bail, particularly in cases of large magnitude affecting a very large number of people. (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of ss. (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of ss. 34 and 149 of the Indian Penal Codel, the court should consider with even greater care and caution because over-implication in the cases in a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution in the normal course of events, the accused is entitled to an order of bail.” The Court further went on to observe that arrest should be the last option and it should be restricted to those exceptional cases, where arresting the accused is imperative in the facts and circumstances of that case. This would mean that the Court must be very careful while examining the entire available record and particularly the allegations, which have been directly attributed to the accused, which are corroborated by other material circumstances on record. 6. It is thus expected that the discretion would be exercised with caution and prudence by the Judges of the Superior Courts, who alone have been entrusted with the power to exercise this discretionary jurisdiction. The burden and the onus, therefore, is all the more seriously construed by imposing self-limitation and applying a balanced approach. 7. There has always been a debate with regard to the successive bail applications being preferred by the accused and the maintainability of such subsequent bail applications after the first bail application has been denied or withdrawn. Some Courts have held that successive bail applications are not maintainable and cannot be allowed, whereas the others have observed that there is no bar as such under the statute. Some Courts have held that successive bail applications are not maintainable and cannot be allowed, whereas the others have observed that there is no bar as such under the statute. The judgments, therefore, are not consistent in this regard. In the absence of a statutory provision laying down the maintainability of a subsequent application or barring the same, it need to be kept broadly open to the discretion of the Court. However, there is consistency on the principle that the doctrine of res judicata is not applicable to the bail jurisdiction. While dealing with such issues, the Courts have cautiously delved into the issues and developed a practice and procedure over a period of years, which is binding it to the doctrine of judicial discipline regards to the hierarchal system prevailing in our country. The ordinary broad principles, which are being followed are that the issues which have been canvassed earlier, would not be permitted to be re-agitated on the same grounds. It has also been held that where relying upon some more material and other considerations, applications have been preferred but that in itself cannot be a ground for entertaining a subsequent application, however, it is consistently followed that a Court while entertaining a subsequent bail application is duty bound to consider the reasons and grounds on which the earlier bail application was filed and rejected. In case the subsequent bail application is to be accepted, the Court is duty bound to record fresh grounds that persuaded it to take a view different from what was taken earlier. There may, however, be situations where there is substantial and substantive change in circumstances which is not merely cosmetic changes with little or no consequences having a direct impact on the earlier decision could be one circumstance where a subsequent bail application can be entertained. Thus if the change is of substantial nature in the facts and circumstances of the case due to subsequent events, the same can be termed to be sufficient ground for entertaining a subsequent application. Thus if the change is of substantial nature in the facts and circumstances of the case due to subsequent events, the same can be termed to be sufficient ground for entertaining a subsequent application. There can be another situation if there is change in the fact situation or in law, which would be of such a nature requiring earlier view being interfered with or where earlier finding has become obsolete, second or subsequent anticipatory bail application may be entertained, however, it should not be entertained merely on the ground of new circumstances, further developments, different considerations, some more details, new documents or illness of accused. 8. With this broad concept with regard to the powers of the superior Courts under Section 438 Cr.P.C., we would proceed to decide the question which has been referred to the Division Bench. 9. The admitted fact in these cases is that the first application under Section 438 Cr.P.C. as preferred by the petitioners has been withdrawn without there being any decision by the Court on merits of the case. The thing which, therefore, needs to be decided at this stage is whether such withdrawal of the application under Section 438 Cr.P.C. would amount to dismissal of the application after due consideration by the Court or would it merely be an application having been taken back by the petitioner. Hon’ble Supreme Court in Rani Dudeja Versus State of Haryana 2017 (13) SCC 555 has, where a petition under Section 438 Cr.P.C. was withdrawn and on a second petition being preferred, rejected on the ground that the earlier petition had been withdrawn and, therefore, the petitioner cannot be allowed to re-agitate the matter on merits, observed in para 4 as follows:- “4. We are afraid, the stand taken by the High Court cannot be appreciated. The petition was for anticipatory bail and the one which had been filed earlier might have been withdrawn in a given situation, without inviting the Court to consider the same on merits. On change of circumstances, when another application under Section 438 Cr.P.C. was filed, the High Court should have considered the same on merits. The principle of res judicata could not have operated in an application for bail.” 10. On change of circumstances, when another application under Section 438 Cr.P.C. was filed, the High Court should have considered the same on merits. The principle of res judicata could not have operated in an application for bail.” 10. In another case i.e. G.R. Ananda Babu Versus State of Tamil Nadu 2021 (1) R.C.R. (Criminal) 843, the Hon’ble Supreme Court has observed that successive anticipatory bail application ought not to be entertained even if specious reasons for change in circumstances are invoked for successive anticipatory bail application, when once it is rejected by speaking order. The Court had further gone to the extent of referring to the merits of the case and setting aside the order of the High Court. 11. Perusal of both these orders of the Hon’ble Supreme Court would lead us to a conclusion that it cannot, as a principle, be said that once an anticipatory bail application has been dismissed as withdrawn, the second anticipatory bail application would not be maintainable at all, however, where an anticipatory bail application has been rejected by a speaking order, successive anticipatory bail application(s) would not be maintainable. Another aspect which needs to be mentioned here with reference to the above two orders is that it is the discretion of the Court dealing with the petition to exercise its powers under Section 438 Cr.P.C. depending upon the facts and circumstances of the case. 12. We have already held that second/subsequent/successive anticipatory bail application would not be maintainable where such an application has been dismissed by the Court on merits by passing a speaking order. Further qua the anticipatory bail application, it can be said that once a first bail application under Section 438 Cr.P.C. stands withdrawn, a second or subsequent bail application would not be maintainable merely on the ground that some new inconsequential and cosmetic change in circumstances has/have come about, further developments such as arrest of co-accused or main accused or bail granted to co-accused, different considerations, some more details, new documents or illness of the accused. It would also not be maintainable on a plea or ground that the Court on the earlier occasion failed to consider any particular aspect or material on record or that any point then available to the accused was not taken, agitated or pressed before the Court. It would also not be maintainable on a plea or ground that the Court on the earlier occasion failed to consider any particular aspect or material on record or that any point then available to the accused was not taken, agitated or pressed before the Court. However, the second/subsequent bail application under Section 438 Cr.P.C. would be maintainable only if there is substantial material and substantive change in the fact situation and circumstances of the case due to subsequent events or in law. 13. The reference is decided accordingly and the cases are ordered to be listed as per Roster on 13.03.2023. Counsel for the parties be informed of the date fixed.