Ganesh Raj vs State Of Rajasthan And Ors.

on 1 April, 2005

Rajasthan High Court

Ganesh Raj vs State Of Rajasthan And Ors. on 1 April, 2005
Equivalent citations: 2005 CriLJ 2086, RLW 2005 (2) Raj 1048, 2005 (2) WLC 327
Author: S K Sharma
Bench: S K Sharma, K Rathore, K C Sharma
JUDGMENT Shiv Kumar Sharma, J.

1. Precise question that has been referred to us for consideration is:-

"Whether second or subsequent bail application under Section 438 Cr.P.C. is maintainable or not?"

2. In our endeavour to answer the question, we may begin with noticing that provision of
Anticipatory bail was introduced for the first time in the Code of Criminal Procedure 1973 Under the
old Code 1898 there was no such provision. There were conflicting decisions of the High Court.
Some of the High Courts took the view that bail could be granted to a person against whom a report
of an offence was made even though he was neither arrested nor detained and even in a case where a
person was suspected of an offence for which he might be arrested by a police officer but the
majority of the High Court held that not to speak of Sessions Judge even High Court did not have
inherent power to grant anticipatory bail by invoking 561A of the old Code. However Law
Commission in the 41st report advocated the granting of power of anticipatory bail to "Superior
Courts." In its 48th report the Law Commission again endorsed the view expressed in the 41st report
and Clause 447 of the Code of Criminal Procedure Bill 1970 for the first time provided the provision
of anticipatory bail thus:-

"As recommended by the Commission, a new provision is being made enabling the superior courts
to grant anticipatory bail i.e., a direction to release a person on bail issued even before the person is
arrested with a view to avoid the possibility of the person hampering the investigation special
provision is being made that the Court granting anticipatory bail may impose such conditions as it
thinks fit. These conditions may be that a person shall make himself available to the Investigating
Officer as and when required and shall not do anything to hamper investigation."

It was observed by the Law Commission in its 48th report thus:-

"31. The Bill introduces a provision for the grant of anticipatory bail. This is substantially in
accordance with the recommendation made by the previous Commission (41st report). We agree
that this would be a useful addition, though we must add that it is in very exceptional cases that such
a power should be exercised.

We are further of the view that in order to ensure that the provision is not put to abuse at the
instance of unscrupulous petitioners, the final order should be made only after notice to the public
prosecutor. The initial order should only be an interim one. Further the relevant section should
make it clear that the direction can be issued only for reasons to be recorded, and if the court is
satisfied that such a direction is necessary in the interest of justice....."

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3. The Bill was referred to the Joint Committee of the Parliament, which made following
observations :-

"The Committee is of the opinion that certain specific conditions for the grant of anticipatory bail
should be laid down in the clause itself for being compiled with before the anticipatory bail is
granted. The clause has been amended accordingly."

4. The clause so amended (Clause 436) was enacted as Section 438 of the Code of Criminal
Procedure 1973. Section 438 reads as under:-

"438. Direction for grant of bail to person apprehending arrest:

(1) When any person has reason to believe that he may be arrested on an accusation of having
committed a non bailable offence, he may apply to the High Court or the Court of Sessions for
direction under this section; and that Court may, if it thinks fit, direst, that in the event of such
arrest, he shall be released on bail.

(2) When the High Court or the Court of Sessions makes a direction under Sub-section (1), it may
include such conditions in such directions in the light of the facts of the particular case, as it may
thinks fit including:-

(i) a condition that the person shall make himself available for interrogation by a police officer as
and when required;

(ii) a condition that the person shall not directly or indirectly make any inducement, threat or
promise to any person acquainted with the facts of the case so as to dissuade him from disclosing
such facts to the Court or to any police officer;

(iii) a condition that the person shall not leave India without previous permission of the Court;

(iv) Such other condition as may be imposed under Sub-section (3) of Section 437, as if the bail were
granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on
such accusation, and is prepared either at the time of arrest or at any time while in the custody of
such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such
offence decides that a warrant should issue in the first instance against that person, he shall issue a
bailable warrant in conformity with the direction of the Court under Section (1).

5. Bench of Hon'ble Five Judges of Supreme Court in Gurubaksh Singh Sibbia v. State of Punjab
(1980) 2 SCC 565, had occasion to examine the amplitude of judicial discretion given by Section 438
Cr.P.C. and various other factors related to this provision. Their Lordships indicated that an
anticipatory bail is a pre-arrest legal process which directs that if the person in whose-favour it is
issued in thereafter arrested on the accusation in respect of which the direction is issued, he shall be

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released on bail. A direction under Section 438 is thereafter intended to confer conditional
immunity from the 'touch' or confinement contemplated by Section 46 of Cr.P.C. It was further
observed that in order to meet the challenge of Article 21 of the Constitution, the procedure
established by law for depriving a person of his liberty must be fair, Just and reasonable. Section
438 is a procedural provision which is concerned with the personal liberty of the individual, who is
entitled to the benefit of the presumption of innocence since he is not, on the date of his application
for anticipatory bail, convicted of the offence in support of which he seeks bail. Since denial of bail
amounts to deprivation of personal liberty, the Court should lean against the imposition of
unnecessary restrictions on the scope of Section 438, especially when not imposed by the legislature.
An over-generous infusion-of constraints and conditions which are not to be found in Section 438
can make its provisions constitutionally vulnerable since the right to personal freedom cannot be
make to depend on compliance with unreasonable restrictions. The beneficent provision contained
in Section 438 must be saved, not jettisoned. The principles propounded by the Constitution Bench
may be summarised thus:-

"(i) The use of the expression 'reason to believe' in Section 438(1) shows that the belief that the
applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief. A
belief can be said to be founded on reasonable grounds only if there is something tangible to go by
on the basis of which it can be said that the applicant's apprehension that he may be arrested is
genuine. Such belief must be capable of being examined by the court objectively, because it is then
alone that the court can determine whether the applicant has reason to believe that he may be
arrested. Specific events and facts must be disclosed by the applicant in order to enable the court to
judge of the reasonableness of his belief. (Paras 35, 40 and 41).

A blanket order i.e. an order which serves, as a blanket to cover or protect any and every kind of
allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, no concerete
information can possible by had, should not generally be passed. Such a blanket order is bound to
cause serious interference with the functions of the police. (Paras 40 and 41)

(ii) If an application for anticipatory bail is made to the High Court or the Court of Session it must
apply its own mind to the question and decide whether a case has been made out of granting such
relief. It cannot leave the question for the decision of the magistrate concerned under Section 437 of
the Code, as and when an occasion arises. (Para 36).

(iii) The filing of an FIR is not a condition precedent to the exercise of the power under Section 438.
(Para 37)

(iv) Anticipatory bail can be granted even after an FIR is filed, so long as the applicant has not been
arrested. (Para 38)

(v) The provisions of Section 438 cannot be invoked after the arrest of the accused. (Para 39)

(vi) An order of bail can be passed under Section 438(I) without notice to the Public Prosecutor or
the Government advocate forthwith and the question of bail should be re-examined in the light of

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the respective contentions of the parties. The ad interim order too must conform to the
requirements of the section and suitable conditions should be imposed on the applicant even at that
stage (Para 42)

(vii) Regarding time-limit, if any, for anticipatory bail the court may, if there are reasons for doing
so, limit the operation of the order to a short period until after the filing of an FIR in respect of the
matter covered by the order. The applicant may in such cases be directed to obtain an order of bail
under Section 437 or 439 of the Code within a reasonably short period after the filing of the FIR as
aforesaid. But this need not be followed as an invariable rule. The normal rule should be not to limit
the operation of the order in relation to a period of time. (Para 42)

6. In the following cases second anticipatory bail application in respect of some cases, was held not
maintainable:-

(i) In Suresh Chand v. State of Rajasthan 2001 (2) RLR 757, it was held that after rejection of first
bail application under Section 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 Article 21 of the Constitution Of India but it has been conferred by the statute enacted by
the Parliament and the Parliament can, by mending 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
restored to only in exceptional cases.

(ii) In Mithu v. State of Rajasthan, 2000 Cr.L.R. (Raj.) 483, maintainability of second anticipatory
bail application was considered and it was pointed out that after rejection of bail under Section 438
Cr.P.C. by the High Court, second application was not competent.

(iii) Full Bench of Calcutta High Court in Maya Rani Guin v. State of West Bengal, 2003 Cr.L.J. 1,
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 sine 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. This, the second application for
anticipatory bail, even if new circumstances develop after rejection or disposal of the earlier
application, is not maintainable.

(iv) This was reiterated in Pawan Kumar Beriwal v. State of West Bengal, 1998(4) Crimes 246,
Ekkari Ghosh @ Jitendra v. State, 1994(4) Crimes 2655, and Kalidas Mitra v. State, (1989) 3 Crimes
652.

7. But in the following cases second anticipatory bail application under Section 438 Cr.P.C. was
found to be maintainable:-

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(i) In Ramgopal v. State of Rajasthan, 1983 Cr.L.R. (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 considerations and if
some more details are available at a later stage the second bail application is maintainable.

(ii) In Nahar Singh v. State of Raj., 1983 RLR 88, learned Single Judge, after rejection of three
previous bail applications under Section 438 Cr.P.C. granted 4th anticipatory bail application on the
ground that the petitioner was suffering from hypertension and chest pain and admitted to the
hospital.

(iii) In Yad Ram v. State, 1988 RCC 267, Single Bench of this Court granted second anticipatory bail
application on the ground that the petitioners were teachers and the death of deceased occurred
after four days of incident due to head injury and none of the injuries ascribed to the petitioners on
the head of the deceased.

(iv) 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 from making seizure of the remaining articles alleged to have been
misappropriated by the petitioner.

(v) In Bhag Singh v. State of Raj., 1991 RCC 95, the petitioner a Sarpanch was charged under Section
409 IPC for embezzlement of money. Since the case diary was not furnished despite two
opportunities, the anticipatory bail was granted.

(vi) Andhra Pradesh High Court in Gandhi v. State of A.P., 1991(3) Crimes 796, held that second
application for anticipatory bail was not barred.

(vii) In Islam Mohammed v. State of Raj., 1994 RCC 207, second anticipatory bail application moved
on new facts, in regard to incident of 1984 for which the investigation was still pending, was
granted.

(viii) In Smt. Munni Devi v. State of Raj., SB Cr. Misc. II Bail Appln. No. 2964/2003 decided on
September 24, 2003, the second anticipatory bail application filed along with certain documents
was allowed.

(ix) In Vishnu Nath Mathur v. State of Rajasthan, 2004(1) R.Cr.D. (Raj.) 63, second anticipatory bail
application was allowed on medical ground.

(x) In Babu Lal v. State of Rajasthan, 2004(3) R.Cr.D. 504 (Raj.), it was held that second
anticipatory bail application was maintainable on the basis of new facts and changed circumstances.

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8. Learned counsel for the petitioners urged that there is not bar in entertaining a second
anticipatory bail application and the same is maintainable because neither the Legislature in its
wisdom had so provided under Section 438 Cr.P.C. nor any court has so laid down in its decision.
According to learned counsel there is a risk in foreclosing filing of second application because life
throws upon unforseen possibilities and offers new challenges, therefore it is safe to have judicial
discretion free to be able to take such possibilities in its stride and to meet such challenges. After
rejection of first application the situation may crop up where filing of second application becomes
necessary. It would be therefore just and proper to allow filing of second application.

9. Refuting the contentions learned Additional Advocate General canvassed that bar in filing second
bail application is very much available under Section 438 Cr.P.C., which seeks to carve out an
exception from the regular mode of grant of bail and to some extent makes a transgression into the
freedom of investigating agency. When on consideration of an application of accused who has
reason to believe that he may be arrested on accusation of having committed a non-bailable offence
and the court on judicial scrutiny has rejected the first bail application of such accused, the
accusation and the reason to believe the accused entertains on that basis, would always remain
unchanged even though in subsequent bail application the ground for making such application may
undergo charge. The provision of Section 438 cannot therefore be interpreted to hold that second or
subsequent bail application is maintainable merely on the basis that such an interpretation would
lead to hardship in one out of thousand cases. It is next canvassed on behalf of the State that
Legislature frames the law in order to cover the generality of cases and not the cases which are
isolated in nature, instances of which are very few and far between on such considerations,
constitutionality of the provisions of such an enactment would also not be open to challenge.
Reliance is placed on R.C. Joshi v. Ajit Mills Ltd., (1997) 4 SCC 98, and Maharashtra State Board of
Secondary Education v. Paritosh Bhupesh Kumar Seth, (1984) 4 SCC 27), wherein the Apex Court
held that a law is to be adjudged for its constitutionality by the generality of cases it covers not by
the freaks and exception it martyrs.

10. It is further contended by the learned Additional Advocate General that merely because a law
causes hardship, it cannot be interpreted in a manner so as to defeat its object. The courts are not
concerned with the legislative policy or with the result, whether injurious or otherwise, by giving
effect to the language used nor is the function of the court where the meaning is clear not to give
effect to it merely because it would lead to some hardship. The court is not required to interpret a
statutory provision which is plain and unambiguous in a different manner only because of the harsh
consequence would arise therefrom. Reliance is placed on Easland Combines Coimbatore v.
Collector of Central Excise, (2003) 3 SCC 410, and Nasiruddin v. Sita Ram, (2003) 2 SCC 577.

11. Learned Additional Advocate General next contended that filing of second bail application under
Section 438 Cr.P.C., by citing changed circumstances, subsequent development, some more details,
further considerations and some additional grounds, is not permissible as there is not such warrant
on the language of the said section. It only grants one time right to the accused person and one this
right is exercised it gets exhausted. The only option being available to the accused is to approach the
High Court after rejection of his bail application by Sessions Judge. When application is rejected by
the Sessions Judge, second application before the Sessions Judge is not maintainable and similarly

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upon reaction of the first application by the High Court second application before the High Court
would not be maintainable. The order granting or refusing to grant anticipatory bail application is a
final order and entertainment of second application essentially require a review of the earlier order.
Such a completely barred by the provisions contained in Section 362 Cr.P.C. Reliance is placed on
Hari Singh Mann v. Har Bhajan Singh Bagwan, (2001) 1 SCC 137.

12. We have pondered over the submissions and scanned the case law.

13. While incorporating Section 438 in the Code of Criminal Procedure the Law Commission
intended that this extraordinary remedy had to be resorted to only a exceptional cases and these
provisions should not be put to abuse at the instance of unscrupulous petitioners. A close look at
Section 438 Cr.P.C. demonstrates and the court must be satisfied that a fit case had been made out
for exercise of such discretion. The court has to make an effort to strike a balance between the
individual's right to personal freedom and the investigational rights of the police. The provisions of
Section 438 Cr.P.C. are not to be applied mechanically. The phraseology 'if it thinks fit' available in
the body of the section reading with Sub-section (2) thereof is indicative enough that such order on
the face of it must show the reasons for granting anticipatory bail. Sub-section (1) of Section 438
Cr.P.C. provides thus.

"When any person has reason to believe that he may be arrested on an accusation of having
committed a non bailable offence, he may apply to the High Court or the Court of Sessions for a
direction under this section, and that court may, if it thinks fit direct that in the event of such arrest
he shall be released on bail."

14. By the use of the word "or" in Sub-section (1) of Section 438, the Legislature has invested the
court of Sessions and the High Court with concurrent jurisdiction. If the accused makes an
application for anticipatory bail to the Sessions Judge and that application is rejected he can made a
subsequent application to the High Court. But is there any remedy available to the accused after the
High Court dismisses anticipatory bail application?

15. We earlier noticed few judgments where in it was held that since accusation remains unchanged,
there cannot be any revival of "reasons to believe" or apprehension of arrest which was considered
by the High Court in the earlier application for anticipatory bail. Therefore the second application
for anticipatory bail, even if new circumstances develop after rejection or disposal of the earlier
application is not maintainable.

16. The other view is that if there are some circumstances which were not before that court when the
first anticipatory bail application was rejected or some additional grounds or there are further
development and different considerations and if some more details are available at a later stage. The
second bail application is maintainable.

17. Having scanned the language of Section 438 and 439 Cr.P.C., we find that there is not substantial
difference between Section 438 and 439, as regards the appreciation of the case as to whether or not
a bail is to be granted. The only distinction is that in a case under Section 438, the person who

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approaches the court apprehends that he may be arrested without any basis whereas under Section
439, such person approaches the court after his arrest. Evidently the power to grant anticipatory bail
does not flow from Article 21 of the Constitution but it has been conferred by the Statute enacted by
the Parliament whereas provisions contained in Section 439 flow from Article 21 of the Constitution
of India. If bail application of the accused under Section 439 is dismissed once, he can move second
and successive bail application on the ground of substantial change in factual situation between the
earlier bail application and the subsequent one but filing of second and successive bail applications
on the basis of new arguments and new twists on same facts cannot be encouraged. Speedy trial is a
Constitutional right of the accused provided to him by Article 21 of the Constitution. If first
application of the accused who is in custody is dismissed on merits and the trial is delayed, the
accused has a right to make second bail application on the ground of delayed trial Section 439
relates to Constitutional right of the accused whereas Section 438 to his statutory right. The
provisions of Section 438 should not be put to abuse at the instance of unscrupulous accused.

18. Interpreting Section 438(1) Cr.P.C. the Constitution Bench of Apex Court in Gurbaksh Singh v.
State of Punjab (supra), indicated thus:-

"Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail
can be granted. The application must show that he has "reason to believe" that he may be arrested
for a non bailable offence. The use of the expression "reason to believe" shows that the belief that the
applicant may be arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief or which
reason it is not enough for the applicant to show that he has some sort of a vague apprehension that
some one is going to make an accusation against him, in pursuance of which he may be arrested.
The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable
offence, must be capable of being examined by the court objectively, because it is then alone that the
court can determine whether the applicant has reason to believe that he maybe arrested. Section
438(1), therefore, can not be invoked on the basis of vague and general allegations, as if to arm
oneself in perpetuity against a possible arrest. Otherwise, the number of applicants for anticipatory
bail will be, as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the
individual's liberty." It is neither a passport to the commission of crimes nor a shield against any
and all kinds of accusations, likely or unlikely."

19. Very recently considering the liberty of a individual the Apex Court in Kalyan Chandra Sarkar v.
Rajesh Ranjan @ Pappu Yadav, 2005 I Apex Decisions (S.C.) 640, propounded thus:-

"It is trite law the personal liberty cannot be taken away except in accordance with the procedure
established by law. Personal liberty is a constitutional guarantee. However, Article 21 which
guarantees the above right also contemplates deprivation of personal liberty by procedure
established by law. Under the criminal laws of this country, 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 Article 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

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the existence of prima facie case there is a need to release such persons on bail where fact situations
require it to do so. In that process a person whose application for 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 cases 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."

There 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 a 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."

20. Can a formula be devised conferring the power of granting anticipatory bail in strait jacket?

Answering this question in negative, the Constitution Bench in Gurbaksh Singh v. Sate of Punjab
(supra), observed that while laying down cast iron rules in a matter like granting anticipatory bail, it
is apt to be overlooked that even Judges can have but an imperfect awareness of the needs of new
situation. Judges have to decide cases as they came before them, mindful of the need to keep
passions and prejudices out of their decisions and it will be strange if, by employing judicial artifices
and techniques, discretion conferred upon the courts is cut down by devising a strait jacket formula.

21. In Suresh Chand v. State of Rajasthan (supra), Single Bench of this Court held that after
dismissal of first bail application under Section 438 Cr.P.C. by the High Court, the accused is not
entitled to ask for the same relief again by making second anticipatory bail application as the
accusation against the accused remains the same. Once anticipatory bail is denied it cannot be made
again on the basis of new arguments and new twists. Fact-situation in respect of accusation of non
bailable offence only changes with the filing of final report by the Investigating Officer under Section
169 Cr.P.C. and not before and when fact-situation in respect of accusation is changed and final
report is filed there is not need of seeking anticipatory bail because in that even the Investigating
Officer may release the accused on his executing a personal bond with or without sureties.

22. The above observations appear to have been made in reposing utmost faith in the Investigating
Agency. But this eventuality escaped attention as to what would happen if the Investigating Officer
despite change in fact situation does not file final report. Possibility of causing needless
inconvenience, harassment and humiliation to the accused by the police in such a situation cannot
be ruled out. Again coming to Gurbaksh Singh v. State of Punjab (supra), we notice that the

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Supreme Court narrated the situation and contingencies for invoking power under Section 438. In
para 8 of the judgment it was indicated thus:-

"No one can accuse the police of possessing a healing touch nor indeed does anyone have misgiving
in regard to constraints consequent upon confinement in police custody. But, society has come to
accept and acquiesce in all that follows upon a police arrest with a certain amount of sang-froid, in
so far as the ordinary rule of criminal investigation is concerned. It is the normal day-to-day
business of the police to investigate into charges brought before then and broadly and generally,
they have nothing to gain, not favours at any rate, by subjecting ordinary criminals to needless
harassment. But the crimes, the criminals and even the complainants can occasionally possess
extraordinary features. When the even flow of the life becomes turbid, the police can be called upon
to inquire into charges arising out of political antagonism. The powerful processes of criminal law
can then be perverted for achieving extraneous ends. Attendant upon such investigations when the
police are not free agents within their sphere of duty, is a great amount of inconvenience,
harassment and humiliation. That can even take the form of the parading of a respectable person in
hand-cuffs, apparently on way to a court of justice. The foul deed is done when an adversary, is
exposed to social ridicule and obloquy, no matter when and whether a conviction is secured or is at
all possible. It is in order to meet such situations, though not limited to these contingencies, that the
power to grant anticipatory bail was introduced into the Code of 1973".

23. While exercising powers under Section 438 the Court is duty bound to strike a balance between
the individual's right to personal freedom and the investigational right of the police. But the
provisions of anticipatory bail should not be put to abuse at the instance of unscrupulous
petitioners.

24. The argument of learned Additional Advocate General that the filing of successive bail
application is barred by Section 362, has no merit. The principles of res-judicata and such analogous
principles are not applicable in criminal proceedings [vide Kalyan Chandra Sarkar v. Rajesh Ranjan
@ Pappu Yadav (supra)].

25. In the ultimate analysis, placing reliance on the ratio indicated in Kalyan Chandra Sarkar's case
(supra), we hold that second or subsequent bail application under Section 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
Section Judge/Additional Sessions Judge.

26. The reference is answered accordingly. Let the matter be placed before the appropriate Bench.

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