R.P. Awasthy, J. -- 1. This order shall also govern the disposal of Misc. Criminal Cases Nos. 5563/95 and 5772/95.

2. Misc. Criminal Case Nos. 648/95, 5563/95 and 5772/95 have been referred to a Larger Bench by an Hon'ble Single Judge for resolving the controversy as to whether second application filed under section 438 of the Code of Criminal Procedure after rejection of the first application would or would not be tenable. The controversy has arisen on account of the fact that Hon'ble Single Judge of this High Court (Hon'ble P.N.S. Chouhan, J.), placing his reliance on 1992 Criminal Law Journal 2208 (Malla Ramarao v. State), has held that second bail petition under section 438, Cr.P.C. is not tenable. However, in 1993 JLJ at page 476 (Dharmendra v. State of M.P.), it has been held by Hon'ble Shacheendra Dwivedi, J. that second petition under section 438, Cr.P.C. would be tenable if the earlier petition has been withdrawn and consequently dismissed. In this authority, 1986 Cr.L.J. at page 279 : Ram Sahodar v. State of M.P. has been relied upon for drawing an analogy between sections 438 and 439, Cr.P.C.

3. Following question therefore has been referred to this Bench:

"Whether