PAWAN KUMAR BERIWAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) ON receipt of an order passed by the concerned Magistrate, Hare Street Police Station registered a case being P.S. Case No. 113 of 1996 under Sections 420/120B, 420/ 467, 468 and 47 of the Indian Penal Code and accordingly the Investigation has been started. ON the apprehension of the petitioners being arrested, a petition under Section 438 of the Code of Criminal Procedure for anticipatory bail was moved before this, Court and a Division Bench by an order dated 9-7-1997 in Criminal Misc. Case No. 2557 of 1997 has been pleased to reject the said application for anticipatory bail after hearing the learned advocates of the parties and on perusal of the Case Diary. After having failed to obtain the anticipatory bail at the first instance, the petitioner has moved the second petitions for anticipatory bail under Section 438 of the Code of Criminal Procedure. The plea in the present proceeding was founded on the ground that some influential persons whose names were not mentioned in the body of the petition were trying to implicate their rivals in false cases and a further reference was made to the accentuation as alleged about political rivalry. Save and. except the ground as aforementioned, nothing else seems to have emerged by way of incorporation of the facts by way of averments in the petition for anticipatory bail itself. There has been no direct reference to any subsequent events or emergence of new facts after the dismissal of the previous application of anticipatory bail as on 9-7-1997.

(2.) IN order to discern the clear picture of the legal point involved in the controversy it is salient to refer to some of the cases relied upon by the respective parties to drive home their points about the maintainability of the second and/or successive petitions for anticipatory ball. IN this context, a reference may be made to the case of Ekkari Ghosh alias Jitendra v. The State. It has been observed inter alia in the above noted decision that it will be legitimate to hold that poundary of Section 438 of the Code of Criminal Procedure is limited if compared to the perspective of Section 439 of the Code of Criminal Procedure which is unlimited in its scope and its application. It has been held further that it is permissible for an accused to repeat the prayer for ball on new ground under Section 439 of the Code of Criminal Procedure after rejection of the earlier prayer for bail in view of the language incorporated under Section 439 Cr. P.C. to the effect that any person accused of an offence and in custody be released on bail, The ratio of law as expounded, in the said decision is to the effect that there can be no earthly reasons nor the cannons of law provided that a Division Bench or a Bench of Coordinate Jurisdiction can sit upon the order-passed earlier by a Division Bench being a Court of Co-ordinate Jurisdiction. There has been an earlier decision of this Court in the case of Kaildas Mitra v. The State. It has been observed in the said decision that under Section 438 of the Code of Criminal Procedure an accused is given right to apply when he reasonably apprehends that he may be arrested on some particular accusation of having a non- bailable offence. The accusation of a particular case cannot vary from time to time. That being the position once an accused has made the application he cannot make any further application on his apprehension on the same accusation in a particular case in a Forum of Co-ordinate Jurisdiction. IN the circumstances a second petition for an anticipatory bail in the same case is not maintainable. Even the distinction between an ordinary order of bail and an order of anticipatory bail has been highlighted in the case of Gurubox Singh Sibbia v. The State of Punjab. It has been opined in the said decision that ordinary order of bail is granted after arrest and therefore it means release from the custody of the Police. The order of anticipatory bail is granted in anticipation of arrest and is therefore effective at the very moment of arrest. IN view of the decision of this Court of coequal jurisdiction that second applications under Section 438 of the Code of Criminal Procedure does not lie. Mr. Bhattacharya, learned advocate of the petitioner has been confronted with querries to indicate precisely before this Court as to the subsequent and/or new facts after dismissal of the earlier application for anticipatory bail on 9-7-97 but he has not succeeded in giving any indication of the same. Mr. Bhattacharya, learned advocate of the petitioner in despair has tried to pursuade this Court to differ with the aforesaid decisions of the Co-ordinate jurisdiction of this Court as referred to earlier but we are not impressed with his argument prompting us to take a different view from the accepted position of law which is being followed as laid down by the successive orders of the Division Bench of this Court. Accordingly the connected petition is liable to be dismissed as the second application for anticipatory bail is not founded on new grounds as referred to. It is needless to reiterate that the second petition for anticipatory bail is not maintainable. Accordingly, the said petition stands dismissed on contest. Petition dismissed.