A second application for anticipatory bail would be maintainable even after withdrawal of the earlier application, provided the attempt of the accused is not to delay the investigation of the case or to gain time in the matter of arrest or for some other undesirable gains.

K. T. Sankaran, J.

A learned single Judge of this Court formulated the following question of law and referred the matter to a Division Bench.

Is it correct to say that once an application for pre-arrest bail under Section 438(1) of the Code of Criminal Procedure is dismissed as withdrawn, a subsequent application on the same set of facts and for the same relief is not maintainable for the said reason?.

2. In the Reference Order, the learned single Judge referred to two decisions of another learned single Judge [Varada Nadarajan v. State of Kerala (2013 (4) KHC 22) and Jamsheer A.V. and another v. State of Kerala (ILR 2013 (3) Kerala 790)] and expressed the view that those decisions require re-consideration. In the present case, the petitioner filed an application for anticipatory bail under Section 438 of the Code of Criminal Procedure before the High Court and the said Bail Application was sought to be withdrawn. Accordingly, that Bail Application was dismissed as withdrawn on 12.7.2013. Thereafter, the petitioner filed the present Bail Application on 30.7.2013 under Section 438 of Cri. P.C. A copy of the order dated 12th July, 2013 was produced as Annexure A along with the second Bail Application.

3. In Jamsheer. A. V. and another v. State of Kerala (ILR 2013 (3) Kerala 790), the petitioner therein moved an application under Section 438 of Cri. P.C. and that application was withdrawn. Later, he filed another Bail Application under Section 438 of Cri. P.C. It was opposed on the ground that dismissal of the earlier Bail Application would be a bar to the maintainability of the second application. It was contended by the petitioner therein that he withdrew the earlier application since the proceedings against him were dropped by the police at that time. This contention was found to be untrue by the learned single Judge while disposing of the second Bail Application. It was held thus :

12. After looking into the Case Diary produced also, I do not find any merit in the case canvassed by the petitioners for filing the present application after withdrawal of a previous application moved by them with the third accused. Previous application filed with third accused was withdrawn since the police removed that accused from the crime is the reason stated to file the present petition. That case canvassed is shown to be factually incorrect and third accused continues to be an accused in the crime. Further- more, the reason so canvassed for prosecuting an application for anticipatory bail afresh, which is a discretionary relief, after dismissal of previous petition as withdrawn, is totally meritless. No party has the right to move successive applications for the discretionary relief under Section 438 of the Code before the same court after dismissal of a previous application, whether it be on merits or on dismissal as withdrawn.

4. In Varada Nadarajan v. State of Kerala (2013 (4) KHC 22), the petitioner filed an application under Section 438 of Crl. P.C. after dismissal of her earlier application as withdrawn. In that context, it was held in Varada Nadarajan v. State of Kerala (2013 (4) KHC 22) thus :

10. Withdrawal of previous applications of petitioner and dismissal of such applications as withdrawn by orders of this Court would only mean that the petitions were not pressed. That would only indicate that petitioner who applied for the discretionary relief was not interested in prosecuting her claim for such relief and, consequently, her petitions were dismissed as withdrawn. Dismissal of previous petitions as withdrawn cannot be canvassed as a ground for filing a fresh application on the premise that there was no decision on merits of her case. Entertaining a subsequent application on the above ground in effect may give rise to the evil of forum hunting which cannot at all be allowed. Furthermore, the grant or rejection of anticipatory bail depends on the exercise of judicial discretion by the Court having regard to the totality of th