ORDER

19.01.2010 — This the second journey of the petitioner to this Court seeking anticipatory bail under Section 438, Cr.P.C. in connec¬tion with Nayagarh Sadar P.S. Case No. 32 of 2009 corresponding to G.R. Case No. 393 of 2009 pending on the file of learned S.D.J.M., Nayagarh for alleged commission of offences under Sec¬tions 341/294/323/324/325/307/379/34 of the Indian Penal Code.

2. Earlier the petitioner and another co-accused, namely, Sanjaya Sahoo filed application in this Court for anticipatory bail in BLAPL No.12849 of 2009 in connection with the very same Nayagarh Sadar P.S. Case No. 32 of 2009. In the said bail application, the present petitioner figures as petitioner No.1 Upon hearing, a co-ordinate Bench of this Court passed order in that bail application on 28.08.2009 granting anticipatory bail to co-accused-Sanjaya Sahoo, but rejected the prayer for anticipatory bail of the present petitioner. The relevant portion of the said order in so far as it relates to the present petitioner is quoted hereunder:

“So far as petitioner no.1-Niranjan Sahoo is concerned, considering the gravity of the offence alleged to have been committed by him, I am not inclined to grant him anticipatory bail and reject the prayer.

However, I grant liberty to petitioner no.1 to surrender before the court below and move for regular bail, in which event the said court will dispose of the bail application of the peti¬tioner on the same day it is filed. If thereafter the petitioner filed bail petition before the Sessions court on being called for the records shall be transmitted to that court at the cost of the petitioner and the latter will do well to dispose of the bail petition expeditiously”.

3. In view of the rejection of the earlier anticipatory bail application of this petitioner, as above, the learned Addi¬tional Government Advocate raised objection about the maintain¬ability of this second anticipatory bail application. Learned counsel for the petitioner, on the other hand, contended, relying upon the decision of this Court in the case of Bimal Lochan Das v. State of Orissa; (2007) 37 OCR 688 that the principle of res judicata is not applicable to bail application and, therefore, there is no bar for filing successive anticipatory bail applica¬tions.

4. In the case of Bimal Lochan Das (supra), this court allowed the second anticipatory bail application holding that the earlier bail application, the anticipatory bail had been granted only for two months and that in the meantime, there was a change of circumstance and, therefore, the second application was main¬tainable. Repelling the contention of the State Counsel in that case this Court observed as follows:

“.....The decision in the case of State of T.N. (supra) on which, Mr. D.K. Mohapatra, places reliance, was a case concerning repeated filing of bail applications under Section 439 Cr.P.C. without any change of circumstances. This Court is of the consid¬ered view that the ratio of the said decision cannot be made applicable to a second petition filed under Section 438 Cr.P.C. As a matter of fact, in the said decision, even in the case of application under Section 439 Cr.P.C., the Supreme Court observed that the principle of res judicata are not applicable to bail applications but repeated filing of bail applications without any change of circumstance could lead to a bad precedent.

From the fact of the present case, it is revealed that the petitioner approached this Court previously in an application under Section 438, Cr.P.C. and, as stated earlier, this Court favoured the petitioner with an order under the said Section, but for a period of two months from the date of passing of the said order. There is a change circumstance as found from the records that now the Vigilance has sought for sanction for lodging the prosecution. It can, therefore, be safely held that the Investi¬gating Agency having sought for sanction to lodge the prosecu¬tion, the same definitely creates sufficie