Mridula Mishra and Dharnidhar Jha JJ.

1. These matters have been referred by Honble Single Judge, for deciding the issue, that if the previous anticipatory bail order was for a limited period till submission of the charge-sheet and the accused after grant of anticipatory bail has surrendered before the Court for furnishing bail bond, whether in such cases on submission of charge-sheet, second anticipatory bail application is maintainable or the applicant will have to surrender and obtain an order of bail under Sections 437 or 439 of the Code of Criminal Procedure. The Single Judge has referred these matters in view of divergent opinion among the Judges about the maintainability of the second anticipatory bail application in such circumstance.

2. Petitioners in these applications were granted anticipatory bail till submission of the charge-sheet. Subsequently when the charge-sheet was submitted, again they filed application for grant of anticipatory bail, which gave rise to question whether in terms of previous order, they are required to appear and surrender before the Court below for seeking regular bail or their prayer for grant of anticipatory baii on the second occasion could be allowed.

3. The issue has been framed in view of the Constitution Bench decision of Apex Court in the case of Guru Baksh Singh Sibia V/s. State of Punjab reported in AIR 1980 SC 1632 as well as divergent views taken by different Benches in the case of Salauddin Abdul Samad Shaikh V/s. State of Maharashtra reported in (1996)1 SCC 667 [: 1996(1) PLJR (SC) 79], in the case of Nirmaljeet Kaur V/s. State of M.P. as well as in the case of Mahendra Prasad Singh V/s. State of Bihar reported in 2004(3) PLJR 491, Sheochandra Singh V/s. State of Bihar reported in 2007(4) BBCJ V-66 as well as in the case of Jagnarayan Yadav alias Babajee and Ors. V/s. State of Bihar, reported in 2010(2) PLJR 684. The view taken in Salauddins case has been followed in all these cases, with certain observations/modifications but so far the view taken by the learned Single Judge in the case of Anirudh Pd. alias Sadhu Yadav V/s. State of Bihar reported in 2006(2) PLJR 676 is concerned, a different view has been taken.

4. Section 438 was introduced in the Code of Criminal Procedure on recommendation of the Law Commission in its Fortyfirst Reports. Section 438 Cr.P.C. contemplates an application by a person on an apprehension of arrest in regard to the commission of non-bailable offence. The object of the provision under Section 438 Cr.P.C. was to give relief to a person from unnecessary harassment and discourage in case of apprehension of arrest for non-bailable offence. This privilege could be granted on an application filed before the High Court or the Sessions Court, if the Court concerned is satisfied that: (i) The person will not abuse the liberty of anticipatory bail, (ii) The facts of the case reveal false implication of applicant in the matters of non-bailable offence, (iii) The applicant has reasonable apprehension of being arrested in the case, (iv) The person concerned will not abscond and will make himself available to face trial and also that the privilege of anticipatory bail will not be otherwise misused by person concerned.

5. Shri Rana Pratap Singh, Senior Advocate, while addressing the Court on this issue has referred different decisions, right from AIR 1980 SC 1632 (Gurubaksh Singh Sibia V/s. State of Punjab), up to 2010(2) PLJR 684 (Jag Narayan Yadav V/s. State of Bihar). He has submitted that it was for the first time in the case of Gurubaksh Singh Sibia (supra) that the Apex Court has considered the scope of Section 438 Cr.P.C. while granting anticipatory bail and discussed the jurisdiction of the Court. The view of the Apex Court in Gurubaksh Singhs case was that amplitude of judicial discretion, given to the High Court and the Court of Sessions should not be cut down by reading into statute. It is for the High Court and the Court of Sessions, to who