The main legal point established in the judgment is that the grant of anticipatory bail should be based on exceptional circumstances, and repeat bail applications should only be allowed in case of a substantial change in the facts and circumstances of the case.

J.K. MAHESHWARI, J.

1. This petition under Section 439(2) of Cr.PC has been filed seeking cancellation of bail granted to non-applicant Nos. 1 and 2 by ASJ, Barwah. Both were made accused in Crime No. 51/13 registered at Arakshi Kendra, Balvada for an offence under Sections 306 and 34 of IPC whereby deceased Pankaj Dubey, husband of accused Sapna, committed suicide on 12-2-2013 at about 11.00 p.m. The prosecution recovered a suicide note wherein allegations of abetment to commit suicide were levelled, in addition statements were also recorded, however, on such allegations, both the non-applicant Nos. 1 and 2 and co-accused Sapna were implicated in this case. The facts leading to file this case are that both the non-applicants applied under Section 438 of Cr.PC seeking anticipatory bail bearing No. 51/2013 (15/2013), which was rejected on 1-4-2013 by the Additional Sessions Judge, Barwah on merits. On rejection, they have filed bail application under Section 438 of Cr.PC (M.Cr.C. No. 4455/2013) before this Court, which was dismissed, for want of prosecution on having case diary available. Then they have filed 2nd bail application before ASJ, Barwah bearing No. 60/2013, under Section 438 of Cr.PC, which was granted, as per order dated 9-7-2013 on the ground of parity with co-accused Sapna. It is not in dispute that co-accused Sapna applied under Section 438 of Cr.PC before the Sessions Court as well as before this Court but her bail applications were rejected. Thereafter, she has surrendered to the custody and applied under Section 439 of Cr.PC before the Additional Sessions Judge, Barwah, which also was rejected, but granted by the High Court under Section 439 of Cr.PC. However, grant of anticipatory bail to non-applicants on the basis of parity with co-accused Sapna has been assailed, being abuse of process of law.

2. It is the contention of Shri N.J. Dave, learned Counsel representing applicant, that on rejection of bail of the non-applicant Nos. 1 and 2 by the Trial Court under Section 438 of Cr.PC, and by the High Court, the second bail application under Section 438, Cr.PC ought not to be entertained and granted by ASJ, Barwah. In fact, the recourse was available to them to apply either before High Court by filing IInd anticipatory bail, or before Hon'ble the Supreme Court, however, without having any substantial change in the circumstances, grant of anticipatory bail by Additional Sessions Judge, is not permissible. In support of his contention reliance has been placed on a judgment of Full Bench consisting of five Judges of Calcutta High Court in the case of Sri Sudip Sen Vs. The State of West Bengal, (2010) CriLJ 4628, wherein it is held that if a person chooses to straightway move to the High Court in first instance and his application is rejected, on the same set of facts and circumstances he will not be entitled to move to the Court of Sessions for second time but may invoke extraordinary powers seeking special leave to appeal in Supreme Court. In such circumstances, the subsequent bail granted under Section 438, Cr.PC to non-applicant Nos. 1 and 2 by Additional Sessions Judge is unsustainable and is amounting to abuse of the process of the Court, which may be cancelled.

3. Shri K.R. Dilliwal, learned Counsel representing both the non-applicant accuseds has argued in support of the contents of the order passed by the Additional Sessions Judge, Barwah, and urged that subsequent anticipatory bail has rightly been granted because non-applicants were senior citizens, not having good health, and also on the ground of parity with co-accused Sapna. In case, some procedural mistake is found, it may be ignored looking to their age, and the order to grant anticipatory bail may not be cancelled. It is further his submission that the non-applicants were granted anticipatory bail, however, this petition under Section 439(2) for cancellation of their bail is not maintainable, however, on the said preliminary objection, this pet