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High Court Of Calcutta
M. H. S. ANSARI, DEBIPRASAD SENGUPTA, AMIT TALUKDAR
MAYA RANI GUIN - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. R. M. 2135 Of 2001
Decided On : 07/30/2002
ANTICIPATORY BAIL - SECOND APPLICATION - MAINTAINABILITY - REGULAR BAIL - REMEDY AVAILABLE TO ACCUSED - INTERPRETATION OF SECTION 438, 439 CR. P. C. - Held, second application for anticipatory bail under Section 438, Cr. P. C. is not maintainable even if new circumstances develop after rejection or disposal of an earlier application. Fresh application for anticipatory bail after the prayer for regular bail is rejected by the learned Magistrate, is not maintainable. The only remedy available to the accused upon rejection of regular bail is to apply to the superior Court for regular bail and not once again for anticipatory bail.
Fact of the Case:
The instant reference was made to the larger bench by a division bench of the court due to a difference of opinion between the judges on the maintainability of a second application for anticipatory bail under Section 438, Cr. P. C. and the remedy available to the accused in such circumstances. The petitioners, Maya Rani Guin and another, were granted anticipatory bail by the High Court on September 16, 1999, subject to certain conditions. However, the Magistrate rejected their prayer for regular bail on October 1, 1999. The petitioners then filed an application for bail before a Division Bench of the High Court under Section 439, Cr. P. C., but the Division Bench differed in opinion on the maintainability of the application and the remedy available to the petitioners.
Finding of the Court:
The court held that a second application for anticipatory bail under Section 438, Cr. P. C. is not maintainable even if new circumstances develop after rejection or disposal of an earlier application. The court reasoned that entertaining a second application for anticipatory bail would amount to a review or reconsideration of the earlier order passed by a Division Bench having co-ordinate jurisdiction, as the accusation remains unchanged. The court also held that a fresh application for anticipatory bail after the prayer for regular bail is rejected by the learned Magistrate is not maintainable. The court reasoned that once the accused surrenders before the Magistrate, the requirement of the apprehension or reason to believe that he would be arrested ceases to exist.
Issues: 1. Whether second application for anticipatory bail Under Section 438, Cr. P. C. is totally barred even if new circumstances develop after rejection or disposal of an earlier application for anticipatory bail? 2. Whether petitioners can file a fresh application Under Section 438 of the Code and whether same will be maintainable in the circumstances of the case and in view of the following observations/directions of the Apex Court in K. L. Verma's case (supra): "as far as the order of 9-10-96 is concerned, since it proceeds on a misreading of Salauddin's case, we modify the order by directing that anticipatory bail will enure till the regular Court decides the question of grant of bail and for a week thereafter, so that if the regular Court refuses bail, the accused person can, if so advised, move the higher Court?" 3. What is the exact nature of the remedy available to the petitioners in the circumstances of the case and in view of the last direction given by the Apex Court in the above-quoted observations, namely : ". . . . . . . . . . . . . . . . . the accused person can, if so advised, move the higher Court"? What was the exact remedy contemplated by the Supreme Court in the above-quoted observations? 4. Whether it was the intention of the Supreme Court in the above-quoted observations that in the similar circumstances of the instant case, High Court should invoke its inherent/revisional jurisdiction and examine the correctness of the order of the Magistrate refusing bail to the petitioners on merit irrespective of whether such order discloses good reasons therefor or not and may in an appropriate case remand back the case again to the Magistrate for consideration of the bail prayer of the petitioners afresh? Further can we reject similar application on merit if it is found that order by which Magistrate rejected the prayer for bail discloses good reasons therefor particularly when it is our opinion that we cannot grant bail or anticipatory bail under the circumstances of the case? 5. Whether this petition is at all maintainable or whether some relief can still be granted to the petitioners by suo motu invoking our inherent/revisional jurisdiction?
Ratio Decidendi: 1. The court relied on the decisions in Ekkari Ghosh alias Jitendra v. State, Kalidas Mitra v. State, and Anil Kumar Agarwala v. The State to hold that a second application for anticipatory bail is not maintainable. 2. The court relied on the decision in Smt. Bijali Shat v. State of West Bengal to hold that an anticipatory bail should be allowed without limiting any period of time. 3. The court relied on the decision in Gurbaksh Singh Sibbia v. State of Punjab to hold that the judicial discretion vested in the Sessions Judge and the High Court should not be narrowed down, curtailed, limited and/or impeded by reading words in the Section or by judicial interpretation. 4. The court relied on the decisions in Chanchal Dutta v. State and Kalidas Mitra v. State to hold that a second application for anticipatory bail on any ground whatsoever is not maintainable after rejection of the first application.
Final Decision: The court answered the questions referred to it as follows: 1. The second application for anticipatory bail, even if new circumstances develop after rejection or disposal of the earlier application, is not maintainable. 2. The fresh application for anticipatory bail under Section 438. Cr. P. C. , after rejection of the prayer for regular bail, is not maintainable. 3. The only remedy available to the accused upon rejection of regular bail is to apply to the superior Court for regular bail and not once again for anticipatory bail.
( 1 ) PRESENT reference to this Bench has been made by an order dated January 28, 2000 passed by a Division Bench of this Court, as there was difference of opinion between the two learned Judges.
( 2 ) BRIEFLY stated, facts leading to the present reference and the questions as framed by the Division Bench, are as under : on an application under Section 438, Cr. P. C. filed by the petitioners-Maya Rani Guin and another, this High Court granted anticipatory bail on September 16, 1999 on certain conditions. It was further directed that such order of anticipatory bail would remain operative for a period of three weeks from the date of passing such order subject to the decision of the Supreme Court in the case of K. L. Verma v. State, 1997 Cal Cri LR (SC) 88. It was further directed by this Court that if any application for bail was thereafter made by the petitioners before the appropriate Court under Section 437/439, Cr. P. C. the same would be disposed of by such Court in accordance with law.
( 3 ) AFTER such anticipatory bail was granted by this Court, the petitioners surrendered before the learned Sub-Divisional Judicial Magistrate on October 1, 1999 and made a prayer for bail. The learned Magistrate by his order dated October 1, 1999 rejected the prayer for regular bail. They were, however, not taken into custody and were given 15 days' time to obtain necessary order of bail from 'the upper Forum'.
( 4 ) THE petitioners thereafter filed an application for bail before a Division Bench of this Court (Corum. Burman Roy and Sengupta, JJ.) under Section 439, Cr. P. C. The petitioners were not in custody. In course of hearing of the said bail application, a question cropped up as to whether an application for regular bail under Section 439, Cr. P. C. was maintainable at the instance of a person who was not in custody. There was no difference of opinion between the two learned Judges and it was held that regular bail cannot be granted to the petitioners, who are not in custody, under Section 439, Cr. P. C. But there was difference of opinion as regards the remedy available to the accused-petitioners in such circumstances. Justice Burman Roy was of the view that the only reasonable interpretation of the observations made by the Supreme Court in K. L. Verma's case with respect to grant of time to an accused, where the prayer for regular bail is rejected, to move the superior Court, is that the accused has to move the superior Court again under Section 438, Cr. P. C. within the stipulated period after rejection of the prayer for regular bail. Sengupta, J. for the reasons stated in his judgment, however, did not agree with the said view of Burman Roy, J. Sengupta, J, was of the view that since an order of rejection of regular bail by the learned Magistrate is a judicial order passed in a judicial proceeding, the same is amenable to revisional jurisdiction of the Superior Court (High Court or a Court of Session) or inherent jurisdiction under Section 482, Cr. P. C. (in respect of High Court only ). Therefore, Sengupta, J. held that in such circumstances the Court of revision can take notice of the earlier order of anticipatory bail granted to the revisionist and stay the operation of the order rejecting prayer for regular bail. So far as the High Court is concerned its exercise of power under Section 482 Cr. P. C. , is far wide and is clearly magnified by the expression". . . . . . . . . . . . . . . . to make such orders as may be necessary to give effect to any order under the Code. "
( 5 ) IT is because of the said difference of opinion between the two learned Judges as stated above, the matter was referred to the larger Bench.
( 6 ) THE following questions have been framed by the Division Bench and referred to the larger Bench for adjudication. " (i) Whether second application for anticipatory bail Under Section 438, Cr. P. C. is totally barred even if new circumstances develop after rejection or disposal of an
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