The main legal principle established in the judgment is that a second application for anticipatory bail is maintainable under Section 438 of the Criminal Procedure Code, and each petition should be decided on its own merits to avoid misuse of the provision.

R.P. Awasthy, J.

1. This order shall also govern the disposal of Misc. Criminal Case 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 Cri. LJ. 2208, Malla Ramarao v. State, has held that second bail petition under Section 438, Criminal Procedure Code is not tenable. However, in 1993 Cr.L.J. 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J. that second petition under Section 438, Criminal Procedure Code would be tenable if the earlier petition has been withdrawn and consequently dismissed.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, Criminal Procedure Code.

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

"Whether a second application for anticipatory bail is maintainable and whether it would make any difference if earlier application was dismissed on merits or on account of having been withdrawn or not pressed?"

4. Our answer to the said question is that the second petition for anticipatory bail is maintainable and it would not make any difference if earlier application was dismissed on merits or on account of having been withdrawn or not pressed.

5. The reasons for our answer are as follows :- To hold that the second bail application under Section 438, Criminal Procedure Code, would not be maintainable if earlier application has been rejected, would be importing something which is not there in the codified and legislated law. There is no statutory prohibition contained in the Code of Criminal Procedure that on an application filed under Section 438, Criminal Procedure Code, being rejected, the person apprehending his arrest in connection with some non-bailable offence cannot file a fresh application for being released on bail under Section 438, Criminal Procedure Code. Therefore, with great respect, we are unable to agree with the view taken in M.Cr.C No. 4109/92, Ram Sewak Sharma v. State (in which reliance has been placed on 1992 Cr. LJ. 2208, M. Ramarao v. State) that on an application filed under Section 438, Criminal Procedure Code being rejected the petitioner is duty bound in law either to surrender himself before the concerned authority or to file a petition for special leave in the Supreme Court.

6. This matter can be elucidated by giving some examples. "A" is found to be in possession of white powder kept in a packet. The said powder is seized from him on account of suspicion that it may be a narcotic substance like brown sugar. However, he is not arrested. Since seizure has been made from him, "A" moves an application under Section 438, Criminal Procedure Code. However, the same is rejected at the first instance saying that the article has been sent to Chemical Examiner. The report of the Chemical Examiner is received subsequently, which reveals that the said powder is Soda bicarb and is not brown sugar. Nevertheless, the prosecuting agency is bent upon prosecuting him. Whether it can now be said that the second application would be barred or not tenable simply because earlier application was rejected?

7. We may consider yet another example in this context. A rich man has kept on his pay roll a lady of loose moral. For wreaking vengeance he prompts his keep to lodge a report of rape having been committed on her by "B". To give a ring of truth, the said prosecutrix self inflicts some minor injuries and lodges a report. Looking to the nature of offence, first application filed under Section 438, Criminal Procedure Code