A second application for anticipatory bail is maintainable if the earlier application was dismissed on merits or dismissed as withdrawn, but not if it was dismissed after being argued at length with liberty for the applicant to surrender and seek regular bail.

ORDER : – This is second application filed by the applicant under section 438 of the Code of Criminal Procedure, for grant of anticipatory bail. The applicant is apprehending his arrest in connection with Crime No. 208/2021 registered at Police Station Kshipra, District-Indore for an offence punishable under section 406, 407 of the Indian Penal Code.

2. First application of the applicant bearing M. Cr. C. No. 60411 of 2021 was dismissed as withdrawn by order dated 10-12-2021 after being argued at length with liberty for him to surrender and seek regular bail.

3. A preliminary objection has been raised by learned counsel for the respondent/State to the effect that the instant second application under section 438 of the Criminal Procedure Code is not maintainable as the earlier application of the applicant was dismissed as withdrawn with liberty for him to surrender and seek regular bail and was not dismissed on merits or dismissed as withdrawn simpliciter hence the only remedy for the applicant is now to act in terms of the previous order and he cannot renew his prayer for grant of anticipatory bail.

4. Learned counsel for the applicant submits that second application under section 438 of the Criminal Procedure Code is maintainable despite the earlier application having been dismissed as withdrawn. In support of his contentions he has placed reliance on the Division Bench decision of the Principal Seat of this Court in M. Cr. C. No. 648 of 1995 decided on 9-2-1996, Imratlal Vishwakarma and others vs. State of M. P., of the Supreme Court in Criminal Appeal No. 615 of 2017 decided on 30-3-2017, Rani Dudeja and State of Haryana, and order dated 29-9-2022 of this Court in M. Cr. C. No. 44198 of 2022, Nilesh Gupta vs. State of M. P., It is hence submitted that the instant application be considered on merits.

5. I have heard the learned counsel for the parties and have perused the record.

6. In Amritlal Vishwakarma and others (supra) it was held by Division Bench of this Court that even if first application filed under section 438 of the Criminal Procedure Code is rejected a fresh application under section 438 can be filed. Second application would be maintainable in case the earlier application was withdrawn and was rejected having been not pressed. It has to be considered on merits even if the earlier application was rejected on its merits. It was held that second consideration of an application for anticipatory bail on rejection of the first one as permissible. The rejection of earlier application is not conclusive.

7. In Rani Dudeja (supra) the Supreme Court held that on change of circumstances when application under section 438 of the Criminal Procedure Code is filed the High Court should consider the same on merits when the first application was dismissed as withdrawn without inviting the Court to consider the same on merits. It was held in paragraph No. 4 as under :

“We are afraid, the stand taken by the High Court cannot be appreciated. The petition was for anticipatory bail and the one which had been filed earlier might have been withdrawn in a given situation, without inviting the Court to consider the same on merits. On change of circumstances, when another application under section 438 of the Criminal Procedure Code was filed, the High Court should have considered the same on merits. The principle of re judicate could not have operated in an application for bail.”

8. Thus the settled position that emerges is that when an application under section 438 of the Criminal Procedure Code is dismissed on merits or is dismissed as withdrawn, a second application, if the same is based upon change of circumstances is maintainable.

9. However, in the present case the first application of the applicant was not dismissed as withdrawn simpliciter but was dismissed as withdrawn after being argued at length with liberty for the applicant to surrender and seek regular bail. In my considered opinion, once the applicant had argued his first