2010 Supreme(Cal) 1192

HIGH COURT OF CALCUTTA
J.N.PATEL, B.BHATTACHARYA, PINAKI CHANDRA GHOSE, K.J.SENGUPTA, ASHIM KUMAR ROY, JJ.

Sudip Sen - Appellant
Versus
State Of West Bengal – Respondent
Appeal No : C.R.M. No. 5123 of 2010
Decided On : Sep 16, 2010

Headnote:

The court addressed the issue of whether a second application for anticipatory bail is maintainable in the event the first application is rejected or disposed of earlier. The court held that a second application for anticipatory bail is maintainable only if there is a substantial change in the facts and circumstances of the case due to subsequent events. The court also held that a person cannot move a second application on the ground that the court on an earlier occasion failed to consider any particular aspect or material on record or that any point then available to him was not agitated before the court.

Fact of the Case:

The case involved a reference from a Division Bench of the Calcutta High Court, seeking reconsideration of the Full Bench decision in Maya Rani Guin and etc. vs. State of West Bengal [(2003) Cri L.J. 1]. The Full Bench had held that a second application for anticipatory bail is not maintainable on the premises founded in Paragraph 20 of the decision of the Supreme Court in K. L. Verma v. State of Rajasthan [(1998) 9 SCC 348].

Finding of the Court:

The court held that a second application for anticipatory bail is maintainable only if there is a substantial change in the facts and circumstances of the case due to subsequent events. The court also held that a person cannot move a second application on the ground that the court on an earlier occasion failed to consider any particular aspect or material on record or that any point then available to him was not agitated before the court.

Issues: 1. Whether second application for anticipatory bail u/S. 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 u/S. 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 v. State of Rajasthan [(1998) 9 SCC 348] and State of M.P. and Anr. V. Ram Kishna Balothia and Anr. [(1995) 3 SCC 221] : As far as the order of 9-10-96 is concerned since it proceeds on a misreading of Salauddins case, we modify the order by directing that anticipatory bail will ensure 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 abovequoted 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? 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: The court relied on the decisions of the Supreme Court in Gurbaksh Singh Sibbia etc. v. The State of Punjab (1980) 2 SCC 565, Salauddin Abdul Samad Shaikh v. State of Maharashtra, 1996 C.Cr.LR (Supreme Court) 130, Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu AIR 2005 Supreme Court 921, Ravindra Saxena v. The State of Rajasthan 2010(1) SCC (Cri) 884. The court held that the view taken by the Full Bench of this Court in the case of Maya Rani Guin (supra), it will be proper that the reference is placed before a Larger Bench of five-Judges, thus, for its consideration and, therefore, the matter be placed before Honble the Chief Justice to place the reference to Bench of five learned Judges.

Final Decision: The court answered the reference made by the Division Bench and held that a second application for anticipatory bail is maintainable only if there is a substantial change in the facts and circumstances of the case due to subsequent events. The court also held that a person cannot move a second application on the ground that the court on an earlier occasion failed to consider any particular aspect or material on record or that any point then available to him was not agitated before the court.