Order On Board

17.10.2023

1. The applicants have preferred this 2nd bail application under Section

438 of the Code of Criminal Procedure, 1973 for the grant of anticipatory bail as they apprehend their arrest in connection with Crime No.111//2020 for the offence punishable under Sections 363, 366, 376(2)(n) IPC and Sections 4 & 6 of the POCSO Act registered at Police Station Kunda, Outpost- Damapur, Kabirdham, District Kabirdham, Chhattisgarh.

2. Learned counsel appearing for the applicants would submit that though the first bail applications filed under Section 438 of the Cr.P.C. for the grant of anticipatory bail were dismissed on merits vide order dated 25.06.2021 in MCRCA Nos.110 and 131 of 2021, on account of changed circumstances, the second bail application is maintainable.

3. Learned Counsel for the applicants would further submit that though the applicants have not surrendered yet, the charge-sheet was filed against some other accused persons. He would also submit that the victim, in her deposition, has stated that at the time of the incident, she was major and further, she has not supported the case of the prosecution, therefore, the second bail application moved by the applicants may be allowed. In support of his argument, he has placed reliance on the judgment of the Hon’ble Supreme Court rendered in the matter of Imratlal Vishwakarma and others v. State of Madhya Pradesh reported in 1996 MPLJ 662.

4. On the other hand, learned State counsel would oppose the bail application and submit that anticipatory bail is not a statutory right linked with Article 21 of the Constitution of India, therefore, successive pleas are not maintainable. He argues that the first bail applications under Section 438 of the CrPC moved by the applicants were dismissed on merits by a detailed order and a second bail application has been preferred by them more or less on the same grounds. In support of his argument, he has placed reliance upon the judgments passed by the Hon’ble Supreme Court in the matter of Mohd. Shamim Khan Vs. State of Jharkhand, Special Leave to Appeal (Crl.) No.9449/2021 and the judgment passed by the High Court of Allahabad in the matter of Raj Bahadur Singh Vs. State of U.P., reported in 2022 LiveLaw (AB) 493.

5. I have heard learned counsel appearing for the parties and perused the case diary.

6. The Hon’ble Supreme Court in the matter of Imratlal Vishwakarma (supra) in para 14 to 17 held as under:-

“14. Nevertheless, as has already been mentioned looking to the facts and circumstances of each case and considering the conduct of the accused in a given case, a second bail application filed under Section 438, Criminal Procedure Code can of course be rejected on the facts and merits of the case. Such a second petition can even be summarily rejected if the facts and circumstances of that particular case so warrant. But to hold that second application would not be tenable under law would be laying down a rule of law which is not there in the codified and legislated legislation. Obviously holding a petition being not maintainable under law is one thing and the petition being liable to be rejected, even summarily, on the basis of its facts or its merits, is the other.

15. In 1993 Cr.L.J. 476, Dharmendra v. State of M. P., it was laid down that second application would be maintainable in case the earlier petition for bail under Section 438, Criminal Procedure Code was withdrawn and was rejected having been not pressed. However, in our opinion, no such fetters can be put or applied on the second petition. Second petition filed under Section 438, Criminal Procedure Code has to be decided on its merits even if the earlier application was rejected on its merits. It shall, however, be open for the Court to reject it even summarily on the ground that the said second petition is nothing but a repetition of the earlier petition and no new ground has been disclosed in the second petition. This may take care of the apprehension that if the sec