A second application for anticipatory bail under Section 438 of the CrPC is not maintainable unless the investigating agency is guilty of suppression of materials relating to the case.

( 1 ) THE petitioner having failed to secure anticipatory bail on 21. 2. 1994, has again knocked on the door of the Court for anticipatory bail under Section 438 of the Cr. P. C.

( 2 ) THE pivot of the claim is founded chiefly on twin grounds plus another ground of lessor momentum viz. omission to argue on inordinate delay, pendency of the civil litigation between the parties and the inaccessibility of the petitioner to the case record depriving him of excavating materials from the FIR of which he was not in possession thereof at the time of hearing the application by the earlier Division Bench.

( 3 ) THE petitioner was constrained to renew his prayer for anticipatory bail for the emergence of new grounds.

( 4 ) THE claim has been resisted by the State on the count that a second application is not maintainable and the court is to fold its hand for the relief.

( 5 ) TO answer the respective claims, it will be much better to take the bull by the horns in the background of the sections viz. sections 438 and 439 respectively of the Cr. P. C.

( 6 ) UPON making a close survey of the section 438, there could be no slim doubt that the words and languages employed in the section do not even remotely foreshadow that application for anticipatory bail, multiple in number, could be harvested as there could be no revival of "reasons to believe" of apprehension of arrest in the subsequent application when the earlier application has suffered rejection.

( 7 ) SECTION 438 clothes a party with a right when he reasonably apprehends that he may be arrested on an accusation of having committed a non-bailable offence. This particular accusation, however, the petitioner may say, does not suffer from any variation from time to time and the new grounds cannot buttress such accusation. This accusation does not occur any change as the direction of the Court will inevitably follow from the accusation which still remains unimpaired. It will be legitimate to hold that the boundary of section 438 is limited, if analysed with section 439 which is unlimited in its scope and its. application. It is permissible for an accused to repeat his prayer for bail on new grounds under section 439 of the Cr. P. C. after rejection of his earlier bail as the language employed in section 439 are, "that any person accused of an offence and in custody be released on bail". This suggest without any slender of doubt or ambiguity that the accused in custody charged with an offence prima facie, has a legitimate right to repeat his prayer for bail at any time.

( 8 ) THE legislature in its ample wisdom and dexterity took the note of the structure of section 439 and while drafting section 438 of the Cr. P. C. skillfully omitted the expressions as appeared in section 439.

( 9 ) IT is trite saying that the legislature does not waste words while drafting the statute. It is also pertinent to mention that Court cannot infer from a statute any language which is meticulously silent. It has got the freedom to analyse and interpret the law. It is denuded of power to legislate the law. It will be apposite to mention that the Court is not the third chamber of the legislature.

( 10 ) IN the light of the above, it is predominant that the intention of the legislature is patent anal it, therefore, excluded from the operation of section 438 a second application for the expressions used as indicated above in section 439. This is one aspect of the matter.

( 11 ) THE next aspect, if appreciated in the perspective of the claim we are of the view that the Court should be too slow to thrive the second application of a party for anticipatory bail as it will generate immortality of the proceedings and the swelling numbers will over crowd the Court. The object of law, therefore, will be frustrated than achieved. Close on the hills was the decision of our High Court in Kalidas Mitra v. State, 1988 (III) Crimes 652, where the Court held that a second application even on new gro