A second application for anticipatory bail under Section 438 of the CrPC is maintainable.

( 1 ) ). THIS matter has come up before us on a reference made by our learned brother, Parvatha Rao, J. The question involved in this reference is, whether a second application under Sec,438 Cr. P. C for grant of anticipatory bail is maintainable in the background of the fact that an earlier application for the relief is dismissed. In M. Rama Rao vs. State a learned Judge of this Court took the view that a second application under Sec. 438 Cr. P. C. , is not maintainable. Unable to agree with that view, Justice Parvatha Rao referred the matter for decision of a Division Bench.

( 2 ) CRIMINAL Procedure Code of the year 1898 i. e. , the Code earlier to the present one, did not have a provision corresponding to Section 438 of the present Code. At that time there was difference of opinion ;amongst various high Courts as to whether the Courts had inherent jurisdiction to release a petitioner on bail in anticipation of his arrest. For the first time, the Law commission of India in its 41st Report dated 24th September 1969 pointed out the necessity to introduce a provision in the Code enabling the High Court and the Court of Session to grant anticipatory bail. As observed in para 39. 9 of its report:"the necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. . . . . . . Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail. "so observing the Law Commission expressed its inclination to accept the suggestion in this regard to release a person on anticipatory bail and accordingly drafted a new section recommending its incorporation in the Criminal Procedure code. This recommendation of the Law Commission in principle was accepted by the Central Government, which introduced Clause 447 in the Draft Bill of the cr. P. C. 1970 with a view to conferring power, express in nature, on the High court and the Court of Session to grant anticipatory bail. While matters stood thus, the 48th Report of the Law Commission in para 31 agreed that this would be a useful addition. Pursuantly Clause 447 of the Draft Bill of 1970 with certain modifications became Section 438 of the Criminal Procedure Code, 1973. Section 438 Cr. P. C. to the extent relevant, reads:"438. Direction for grant of bail to person apprehending arrest:- (1) when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence he may apply to the High Court or the Court of Session for a direction under this section and that Court may, if it thinks fit, direct that in the event of such arrest he shall be released on bail. "the basic distinction between an order granting an ordinary bail and an order of anticipatory bail as observed by the Supreme Court in Gurbaksh Singh vs. State of Punjab is that whereas the former is granted after the arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is, therefore, effective at the very moment of arrest. Grant of ordinary bail is covered by Sections 437 and 439 Cr. P. C. while anticipatory bail is covered by Section 438 Cr. P. C.

( 3 ) ). Section 439 Cr. P. C is one of the provisions that stood a convenient model for the Legislature to frame Section 438. Section 439 Cr. P. C. 1973 reads:"439. Special powers of High Court or Court of Session regarding bail: a High Court or Court of Session may direct- (a) that any person accused of an offence and in custody be released on bail and if the offence is of the nature specified in sub-sec. (3) of Section 437, may impose any condition which i