KALIDAS MITRA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The petitioner after having failed to obtain an order for anticipatory bail before a Division Bench of this Court on 23-6-88, has preferred this application again under Section 438 on the allegation that subsequent to 23-6-88 some new facts in support of the prayer for anticipatory bail on behalf of the petitioner has come to his knowledge giving rise to new ground in support of the prayer for anticipatory bail on behalf of the petitioner has come to his knowledge giving rise to Dew ground in support thereof and in consideration thereof he has filed the second petition for anticipatory bail.

(2.) According to the learned Advocate for the petitioner, this fresh petition under Section 438 is maintainable inspite of the order of rejection by a Division Bench of this court and according to the learned Additional Public Prosecutor it is not. Learned Advocate for the petitioner wants us to consider this petition under Section 438 on the ground that new grounds for making such an application have arisen after his previous application under Section 438 of Code of Criminal Procedure was rejected by a Division Bench of this court on 23-5-1988.

(3.) The learned Advocate for the petitioner brings out an analogy between the provision of Sections438 and 439. On perusal of these two Sections it is found that they are altogether different.Section 438 sub-section (1) reads as follows: (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 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 bailT and sub-section (3) of Section 438 reads thus: (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 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 subsection (1).By this section a person has been given a right to apply to High Court or to the Court of Sessions for an order for anticipatory bail when he has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence and the court may pass an order in his favour and on the basis of that order be shall be released on bail unless he is arrested with warrant. These conditions limiting the scope of an order under Section 438 clearly distinguishes the provision of Section 438 from those in Section 439. Under Section 439 whenever a person accused of offence and is in custody he may be released on bail at any time. Under Section 438 a person has been given the right to apply for the required direction when he apprehends that he may be arrested on some particular accusation. The accusation for which he has reason to believe that he may be attested cannot vary from time to time in respect of a particular case. But in 439 there is no such limitation and at any time the Court may release a person accused of an offence and is in custody whenever it is shown to the Court that there are grounds for releasing him. So whenever new grounds arise after the rejection of his previous application under Section 439, the accused in custody can apply for his release on those new grounds the Court may release the accused in custody at any time whenever it finds grounds therefor. In 438 the Court may give the direction when a person having reason to believe that he may be arrested on an accusation... applies therefor. In Section 438 a person has been given a right to apply to a Court for a direction - he may apply when he apprehends arrest on an 'accusation'. As the accusationT in a case remains the same and as he been given the right to apply when he apprehends arrest on such accusationT he cannot apply more than once in respect of the same Taccusation. In Section 439 the Court has been given the power to release whenever it finds grounds therefor. In Section 438 a person has been given the right to apply for the direction mentioned therein when he apprehends arrest on an accusation of having committed a non-bailable offence his right to apply springs forth not from the grounds the Court may find for issuing direction but from the accusation. So he cannot apply more than once in respect of the same accusation.