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Judgment
T. Sudanthiram, J.—The Petitioner apprehends arrest at the hands of the respondent / Police for the alleged offences punishable under
Sections 147, 148, 324 and 302 r/w 120 (B) IPC in Crime No. 220 of 2007
The Learned counsel for the petitioner submitted that the petitioner''s name does not find place in the FIR and he is implicated on the charge of
conspiracy, but the occurrence had taken place only after a sudden quarrel and as such there could be no conspiracy earlier to the occurrence.
The Statement of witnesses in respect of the conspiracy were recorded three days after the occurrence and they area false witnesses. The learned
counsel further submitted that though the earlier petition was dismissed, subsequently some of the accused were arrested and were released on bail
and while releasing the accused on bail in Crl. O.P. No. 36744 of 2007, it is observed that ""the learned Government Advocate submits that the
investigation is almost over
The learned Government Advocate submitted that the earlier application for anticipatory bail was dismissed by this court only considering all the
facts and circumstances and there is no change of circumstances. The eight accused in this case whose anticipatory bail was dismissed was granted
bail only after his arrest and remand. This second application for anticipatory bail is not maintainable even though the investigation is almost over.
Learned Government Advocate further added that there are witnesses to speak about the conspiracy and involvement of this petitioner.
The Learned counsel for the petitioner relied on the decision rendered by the Full Bench of the Rajasthan High Court reported in Ganesh Raj
Vs. State of Rajasthan and Others, . The question that was referred to the Full Bench for consideration was ""Whether second or subsequent bail
application u/s 438 Cr. P.C. is maintainable or not"" while considering the question, the Full Bench of the Rajasthan High Court referred to number
of decisions wherein the second anticipatory bail application was held not maintainable and also where the anticipatory bail was found to be
maintenance While so, some of the reference made are as follows:-
In Suresh Chand v. State of Rajasthan, 2001 (2) RLR 757, it was held that after rejection of first bail application u/s 438, Cr. P.C. by the High
Court, Second anticipatory bail application was not maintainable. The single Judge indicated that the power to grant anticipatory bail does not flow
from Art 21 of the Constitution of India but it has been conferred by the statute enacted by the Parliament and the Parliament can, by amending the
Code of Criminal Procedure or by enacting special law take it away also. Even this provision can be omitted by the State Amendment and such
amendment will not have the effect of depriving a person of his personal liberty. It was further observed that the law commission intended that the
provisions of anticipatory bail should not be put to abuse at the instance of unscrupulous petitioners and this extraordinary remedy has to be
resorted to only in exceptional cases.
Full Bench of Calcutta High Court in Maya Rani Guin and etc. Vs. State of West Bengal, , indicated that entertaining a second application for
anticipatory bail would amount to review or reconsideration of the earlier order passed by a Division Bench having co-ordinate jurisdiction, as the
accusation remains unchanged. The accusation being the since qua non and which remains the same, there cannot be any revival of ''reasons to
believe'' or apprehension of arrest which was considered by Court in the earlier application for anticipatory bail. Thus, the second application for
anticipatory bail, even if new circumstances develop after rejection or disposal of the earlier application, is not maintainable.
In Ramgopal v. State of Rajasthan 1983 Cr. LR (Raj) 217 learned Single Judge of this Court held that the second bail application should not be
entertained in routine, but if there are some circumstances which were not before the Court when the earlier bail application was rejected or some
additional grounds or there are some further development and different consideration and if some more detail are available at a later statue the
second bail application is maintainable.
In Bhagwan Singh v. State (1990 RCC 565) second anticipatory bail application was granted on the ground that while rejecting first bail
application the Petitioner was directed to appear before the Investigating officer for interrogation but no active steps were taken either to arrest the
Petitioner or to obtain a search warrant for making seizure of the remaining articles alleged to have been misappropriated by the petitioner.
Further it is observed in paragraph 19 as follows:-
Very recently considering the liberty of an individual the Apex Court in Kalyan Chandra Sarkar etc. Vs. Rajesh Ranjan @ Pappu Yadav and
Another, Propounded thus at para 17, page 949 of Crl L.J.
It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law, personal liberty is a
constitutional guarantee. However, Art 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure
established by law. Under the criminal laws of this country a person accused of offences which are non bailable is liable to be detained in custody
during the pendency of trial unless he is enlarged on bail in accordance with law Such detention cannot be questioned as being violative of Art. 21
since the same is authorised by law. But even persons accused of non bailable offences are entitled for bail if the court concerned comes to the
conclusion that the prosecution has failed to establish a prima facie case against him and or if the Court is satisfied for reasons to be recorded that
in spite of the existence of pirma facie case there is a need of release such persons on bail where fact situation require it to do so. In that process a
person whose application of enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a
change in the fact situation. In such case if the circumstances then prevailing requires that such persons to be released on bail in spite of his earlier
applications being rejected, the courts can do so.
Their Lordships further observed in para 18 as under :-
...ordinarily, the issues which had been canvassed earlier would not be permitted to be re-agitated on the same grounds, as it would lead to a
speculation and uncertainty in the administration of justice and may lead to forum hunting.
In para 19 it was indicated thus :-
...Therefore, even though there is room for filing a subsequent bail application in cases. Where earlier applications have been rejected the same can
be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has
become obsolete, This is the limited area in which an accused who has been denied bail earlier, can move a subsequent applications.
Ultimately, the full Bench of the Rajashthan High Court concluded and answered the references as follows in paragraph : 25
25 In the ultimate analysis, placing reliance on the ratio indicated in Kalyan Chandra Sarkar''s case application u/s 438 Cr. P.C. can be filed if
there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become
obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Second or subsequent
anticipatory bail application shall not be entertained on the ground of new circumstances, further developments, different considerations, some
more details, new documents or illness of the accused. Under no circumstances the second or successive anticipatory bail application shall be
entertained by the Sessions Judge / Additional Sessions Judge.
This Court readily follows the decision rendered by the Full Bench of the Rajasthan High Court cited supra. Personal liberty and social justice
are the two wheels and it is the duty of the court to see that both the wheels run parallel. The provisions of the anticipatory bail should not be put to
abuse and the court is duty bound that investigational right of the police is not infringed.
In this case, from the arguments advanced by the petitioners as this court does not find change in the fact situation or in-law, in order to ,
interfere in the earlier finding, this application for anticipatory bail is dismissed.