The main legal point established in the judgment is that a second application for anticipatory bail under Section 438 of the Code of Criminal Procedure is maintainable, as ruled by the Supreme Court in Babu Singh v. State of U.P. AIR 1978 SC 527.

B.K. Roy, J.

1. Vide his order dated 26.5.2005, a learned Single Judge directed the office to place the records of B.A. No. 1365/2005 before one of us (Chief Justice) for constituting a larger Bench as after rejection of the earlier anticipatory bail application the instant application has been filed and this is a second application about which the learned Public Prosecutor, Assam in view of the decision of Anr. learned Single Judge in Utpal Sarma v. State of Assam 2004 (1) GLT 683 submitted that it is not maintainable. In B.A. 1412 of 2005 the same question is involved. That is how these two matters have come up before our Division Bench for considering the maintainability of the second anticipatory bail application.

2. The contention of Sri. B.K. Mahajan, the learned Counsel appearing on behalf of the Petitioner in B.A. No. 1365 of 2005 was that the second anticipatory bail application would be maintainable in view of the judgment of the Madhya Pradesh High Court in Imratial Vishwarkarma v. State of M.P. (1997) 1 Crimes 289(M.P.), whereas according to Mr. Musahary, the learned Public Prosecutor, Assam, it would not be maintainable in view of the judgment of our own High Court in Utpal Sarma (supra) which has followed the decision of the Full Bench of the Calcutta High Court in Maya Rani Guin v. State of West Bengal 2003 Cri L.J. 1.

3. The Code of Criminal Procedure (hereinafter referred to as 'the Code') envisages grant of bail by the High Court under following three Sections:

(i) Before arrest of the accused under Section 438 of 'the Code', which reads as under:

438. Direction for grant of bail to person apprehending arrest (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for direction under this section; and that Court may, it is thinks fit, direct that in the event of such arrest, he shall be released on bail.

(2) When the High Court or the Court of Session makes a direction under Sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including-

(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

(iii) a condition that the person shall not leave India without the previous permission of the Court;

(iv) such other condition as may be imposed under Sub-section (3) of Section 437, as if the bail were granted under that section.

3. If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-section (1).

(ii) After arrest of the accused under Section 439 of 'the Code', which reads as under:

439. Special powers of High Court of Court of Session regarding bail.

a. A High Court or Court of Session may direct

i. that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in Sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that Sub-section;

ii. that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:

Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable e