Honble S.K. SHARMA, J.–Precise question that has been referred to us for consideration is:-

``Whether second or subsequent bail application under section 438 Cr.P.C. is maintainable or not?

(2). In our endeavour to answer the question, we may begin with noticing that provision of Anticipatory bail was introduced for the first time in the Code of Criminal Procedure 1973 Under the old Code 1898 there was no such provision. There were conflicting decisions of the High Court. Some of the High Courts took the view that bail could be granted to a person against whom a report of an offence was made even though he was neither arrested nor detained and even in a case where a person was suspected of an offence for which he might be arrested by a police officer but the majority of the High Court held that not to speak of Sessions Judge even High Court did not have inherent power to grant anticipatory bail by invoking 561A of the old Code. However Law Commission in the 41st report advocated the granting of power of anticipatory bail to ``Superior Courts. In its 48th report the Law Commission again endorsed the view expressed in the 41st report and clause 447 of the Code of Criminal Procedure Bill 1970 for the first time provided the provision of anticipatory bail thus:-

``As recommended by the Commission, a new provision is being made enabling the superior courts to grant anticipatory bail i.e., a direction to release a person on bail issued even before the person is arrested with a view to avoid the possibility of the person hampering the investigation special provision is being made that the Court granting anticipatory bail may impose such conditions as it thinks fit. These conditions may be that a person shall make himself available to the Investigating Officer as and when required and shall not do anything to hamper investigation.

It was observed by the Law Commission in its 48th report thus:-

``31. The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendation made by the previous Commission (41st report). We agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised.

We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the public prosecutor. The initial order should only be an interim one. Further the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the court is satisfied that such a direction is necessary in the interest of justice.....

(3). The Bill was referred to the Joint Committee of the Parliament, which made following observations:-

``The Committee is of the opinion that certain specific conditions for the grant of anticipatory bail should be laid down in the clause itself for being complied with before the anticipatory bail is granted. The clause has been amended accordingly.

(4). The clause so amended (clause 436) was enacted as Section 438 of the Code of Criminal Procedure 1973. Section 438 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 Sessions for direction under this section; and that Court may, if it thinks fit, direst, that in the event of such arrest, he shall be released on bail.

(2) When the High Court or the Court of Sessions 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 an

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