A second application for anticipatory bail under Section 438 of the CrPC is maintainable if new circumstances develop after the rejection or disposal of an earlier application.

J.N. Patel, C.J

1. We have heard the learned counsel for the parties.

2. The Division Bench while dealing with group of applications C.R.M. No. 5123 of 2010 Sri Sudip Sen vs. The State of West Bengal with C.R.M. No. 4559 of 2010 Sri Suman Saha @ Kousik Saha vs. State of West Bengal & Ors. with C.R.M. No. 4457 of 2010 Jayanta Deb vs. The State of West Bengal, wherein the lead application is that of Sri Sudip Sen, seeking pre-arrest bail, are of the view that the decision of this Court rendered by the Full Bench in the case of Maya Rani Guin and etc. vs. State of West Bengal (2003) Cri L.J. 1, needs reconsideration and has referred the following questions for reconsideration of the Full Bench decision in Maya Rani Guin’s case (supra) and directed the matter to be placed before the Chief Justice for decision by a Larger Bench by framing the following questions:-

“(A) Even though the Full Bench decision of the Jaipur Bench of the Rajasthan High Court in Ganesh Raj v. State of Rajasthan (supra), is at best, of a persuasive value, we feel that since even after taking note of Full Bench decision of our Court in Maya Rani Guin and etc. v. State of West Bengal (supra), a contrary decision thereto was arrived at –altogether, ratio of the Full Bench decision of the Jaipur Bench of the Rajasthan High Court in Ganesh Raj v. State of Rajasthan (supra) should not be frittered away.

(B) The Full Bench in Maya Rani Guin’s case (supra), was preliminarily dealing with a situation where, upon grant of an Order under Section 438, Cr. P.C., the Petitioner went to submit himself before the Regular Court. But he was not taken into Custody on the basis of a fiction of Law. He again chose to seek similar relief.

(C) Whereas the question before us as to whether in the event there is some unimpeachable document or some unassailable situation very much existing at the time the Application was refused at the first instance not being brought to the notice of the Court. Will the same absolutely forbade the Applicant from retrieving his lost fortune?

(D) The interpretation of Ansari, J. in Paragraph 21 of the decision of Maya Rani Guin and etc. v. State of West Bengal (supra) that : “……… We are of the view that the second application for anticipatory bail, even if new circumstances develop after rejection or disposal of the earlier application, is not maintainable” on the premises founded in Paragraph 20 “……… We are of the view that entertaining a second application for anticipatory bail would amount to review or reconsideration of the earlier order passed by a Division Bench having co-ordinate jurisdiction as the accusation remains unchanged………” also requires a fresh look as to whether in a given case there may be a change in the situation and mollification of the accusations upon submission of the Report in final form at the instance of the investigating Agency.

(E) The Division Bench decision of Madhya Pradesh High Court in Imratlal Vishwakarma & Ors. v. State of U.P. reported in 1997(1) Crimes 289 at Paragraph 13 has held :

‘… … … However, in our opinion, no such fetters can be put or applied on the second petition. Second petition filed under Section 438, Cr. P.C. has to be decided on its merits even if the earlier application was rejected on its merits. It shall, however, be open for the Court to reject it even summarily on the ground that the said second petition is nothing but a repetition of the earlier petition and no new ground has been disclosed in the second petition. This may take care of the apprehension that if the second applications are held to be tenable, it may lead to misuse of the said provision and the Courts would be flooded with such repeated petitions.’

The said Division Bench of Madhya Pradesh High Court in Imratlal Vishwakarma & Ors. v. State of U.P. (supra) took cue from an earlier Authority, which relied on the decision of Supreme Court in Babu Singh v. State of U.P., (1978) 1 SCC 579 and applied the principles la