K GAJENDRA NAIDU Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) .This matter has come up before us on a reference made by our learned brother, Parvatha Rao, J. The question involved in this reference is, whether a second application under Sec,438 Cr.P.C for grant of anticipatory bail is maintainable in the background of the fact that an earlier application for the relief is dismissed. In M. Rama Rao vs. State a learned Judge of this Court took the view that a second application under Sec.438 Cr.P.C., is not maintainable. Unable to agree with that view, Justice Parvatha Rao referred the matter for decision of a Division Bench.

(2.) Criminal Procedure Code of the year 1898 i.e., the Code earlier to the present one, did not have a provision corresponding to Section 438 of the present Code. At that time there was difference of opinion ;amongst various High Courts as to whether the Courts had inherent jurisdiction to release a petitioner on bail in anticipation of his arrest. For the first time, the Law Commission of India in its 41st Report dated 24th September 1969 pointed out the necessity to introduce a provision in the Code enabling the High Court and the Court of Session to grant anticipatory bail. As observed in para 39.9 of its report:

(3.) . Section 439 Cr.P.C is one of the provisions that stood a convenient model for the Legislature to frame Section 438. Section 439 Cr.P.C. 1973 reads: