Judgment

Mr. Augustine George Masih, J.

These petitions have been referred to the Division Bench in the light of conflicting judgments on the aspect and to clarify the issue of maintainability of second anticipatory bail application when the first application has been dismissed as withdrawn.

2. The question, therefore, which requires to be considered and answered is “whether a second anticipatory bail application under Section 438 Cr.P.C. is maintainable when the first one filed by the petitioner has been withdrawn?”

3. Before proceeding to answer this question, it would be appropriate to understand the object and reasons for introduction of Section 438 Cr.P.C. under which the powers have been conferred upon the High Court as well as the Sessions Court to issue direction that in the event of arrest of a person, who has approached the Court under this section having reason to believe that he may be arrested on accusation of having committed non-bailable offence, shall be released on bail. The term ‘anticipatory bail’ does not find mention in the statute, however, reference thereto is being made in the reports of the Law Commission and, therefore, is conveniently understood giving a leverage to a person to apply for bail in anticipation of arrest, meaning thereby that there is no question of release on bail unless the person is arrested. The section itself illustrates the facts which need to be taken into consideration by the Court while considering such an application, which would have been moved by a person apprehending arrest. The Court has also been conferred with the power to impose conditions in the given facts and circumstances of the case as it may think fit. It may be added here that the High Court as well as the Court of Sessions can pass an interim order for grant of anticipatory bail, however, notice is mandated to be issued to the prosecuting agency/Public Prosecutor, who should be given a reasonable opportunity of being heard before an application is finally heard by the Court and decided. The discretion obviously is that of the Court to grant interim benefit or to reject the same at the very outset.

4. The object of anticipatory bail is to relieve person from unnecessary apprehension or disgrace. It is an extraordinary power conferred upon the Superior Courts, which, to some extent, intrudes into the affair of investigation of crime requiring the Court to be conscious and circumspect in exercising such power of discretionary nature. All circumstances under which such discretion can be exercised by the Court cannot be spelt out and, therefore, the legislature in its wisdom has left it at the discretion of the Court to exercise such power in the light of the circumstances of each case. In other words, it can be said that anticipatory bail is a device to secure the individual’s liberty which does not mean giving a passport for commission of crimes or a shield against any or all kind of accusations likely or unlikely. Courts have been loath to exercise its powers under Section 438 Cr.P.C. when it comes to a conclusion that there is no harassment or vindictive action against the person who has approached the Court or someone was falsely implicating such person(s) to drag him/them into criminal prosecution with a view to damage the reputation of such person(s). Courts have even observed that anticipatory bail may be granted normally to avoid extreme hardship and inconvenience or harassment by the investigating agency to a person, who may appear to be innocent and law abiding citizen, prima facie found falsely or malafidely implicated in a non-