K GAJENDRA NAIDU Vs. STATE OF ANDHRA PRADESH
LAWS(APH)-1992-7-15
HIGH COURT OF ANDHRA PRADESH
Decided on July 22,1992

K.GAJENDRA NAIDU Appellant
VERSUS
STATE OF ANDHRA PRADESH, REPRESENTED BY INSPECTOR OF POLICE Respondents


Referred Judgements :-

A V. B [REFERRED TO]
A V. B [REFERRED TO]
SHEIK KHASIM BI VS. STATE [REFERRED TO]
MALLA RAMARAO VS. STATE [OVERRULED]


JUDGEMENT

Bhaskar Rao, J. - (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:
"The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days.......Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail."
So observing the Law Commission expressed its inclination to accept the suggestion in this regard to release a person on anticipatory bail and accordingly drafted a new section recommending its incorporation in the Criminal Procedure Code. This recommendation of the Law Commission in principle was accepted by the Central Government, which introduced Clause 447 in the Draft Bill of the Cr.P.C. 1970 with a view to conferring power, express in nature, on the High Court and the Court of Session to grant anticipatory bail. While matters stood thus, the 48th Report of the Law Commission in para 31 agreed that this would be a useful addition. Pursuantly Clause 447 of the Draft Bill of 1970 with certain modifications became Section 438 of the Criminal Procedure Code, 1973. Section 438 Cr.P.C. to the extent relevant, reads:
"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 Session 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."
The basic distinction between an order granting an ordinary bail and an order of anticipatory bail as observed by the Supreme Court in Gurbaksh Singh vs. State of Punjab is that whereas the former is granted after the arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is, therefore, effective at the very moment of arrest. Grant of ordinary bail is covered by Sections 437 and 439 Cr.P.C. while anticipatory bail is covered by Section 438 Cr.P.C.
(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:
"439. Special powers of High Court or Court of Session regarding bail: A High Court or Court of Session may direct- (a) that any person accused of an offence and in custody be released on bail and if the offence is of the nature specified in sub-sec.(3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section. (b)......... Provided that the High Court or the Court of Session shall before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing of opinion that it is not practicable to give such notice."
The corresponding provision to Section 439 of 1973 Cr.P.C. is Section 498 of 1898 Code. Though Sec. 439 Cr.P.C conferred jurisdiction on the High Court as well as on the Court of Session to grant ordinary bail, and the corresponding provision (S.498) was there since 1898 never there arose a question similar to the one on hand as to maintainability of a second application under Section 439 (or Sec.498 of 1898 Cr.P.C.) before this Court nor our attention is drawn to any decision of the Supreme Court on this issue. On the other hand, since decades and decades together there developed a practice and convention in this High Court to move number of bail applications in respect of one and the same person or persons successively. Such applications were entertained and disposed of by this High Court during all these decades. The forums 'High Court or Court of Session' are involved in both the provisions viz. Sections 438 and 439 and they run one after the other. Both the provisions, namely Sections 438 and 439 of the Criminal Procedure Code, are designed to secure a valuable right viz., right to personal freedom and involve the application of salutary presumption deeprooted in criminal jurisiprudence that a person is innocent as long as he is proved to be otherwise. Departure from the established convention and practice in the absence of any specific restraints or fetters intended by the Legislature would be inviting the risk of foreclosure of a second application for grant of anticipatory bail being unmindful of the fact that life throws up unforeseen possibilities and offers new challenges apart from the fact that circumstances may undergo a change and the investigation may reveal little or no criminal liability. The only decision we could come across as regards the maintainability of successive applications for grant of ordinary bail is the one rendered by a single Judge of the Manipur High Court in Nabachandra vs. Manipur Administration. In that case the police failed to send any report on the first bail application and therefore a second bail application was moved on a later date. The Sessions Judge felt that the Magistrate ought not to have entertained the second bail application, when the first one was not disposed of. The Sessions Judge was held to be wrong, by the learned single Judge, in thinking that there should be any such formality of the first application for bail being disposed of for purposes of entertaining the second application. So observing the Manipur High Court held: "There is nothing wrong or illegal in making successive applications for bail when the accused person remains in custody." One more provision that can be examined in juxtaposition to Section 438 CrP.C. for purposes of cullingout whether the Legislature intended barring of a second application under Sec.438 Cr.P.C is Section 397 Cr.P.C. of 1973. The provision runs thus:
"397, Calling for records to exercise powers of revision: (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court.......... (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by either of them."
Sub-section (3) of Section 397 is relevant for the present purpose. The sub-section specifically bars a second application by the same person. To analyse the implication by way of an illustration, it is to be noticed that in maintenance proceedings against grant of maintenance the husband having been unsuccessful in a revision filed before the Sessions Court cannot have a further revision to the High Court. Thus, sub-section (3) to Section 397 has specifically barred a second application for revision by the same person. Therefore, when the Legislature intended barring a second application it has in fact provided it specifically. Neither Section 439 nor Section 438 is provided with such a barring clause. If really the Legislature intended to bar the second application for grant of anticipatory bail, there would surely have been a specific provision therefor. Section 438 Cr.P.C as noted, has conferred a wide judicial discretion to grant anticipatory bail on the Sessions Court and the High Court without any rider barring a second application therefor and it should be the concern of the Courts generally to preserve their discretion without meaning to abuse it, and it would be strange if we exhibit concern to stultify the discretion conferred upon the Courts by law. Further, it is not open to this Court to read into Section 438 Cr.P.C. a bar in the matter of entertaining a second application for grant of anticipatory bail, which is not so provided by the Legislature, more so when there is such a bar provided by the Legislature in so far as Section 397 Cr.P.C is concerned. Further as noted earlier a convention and practice has grown up and established a judicial precedence in this High Court in entertaining and disposing of successive applications for grant of ordinary bail under Section 439 Cr.P.C. which also confers jurisdiction both on the Sessions Court and the High Court. Inasmuch as, both, Sections 438 and 439 Cr,P.C. confer similar and concurrent jurisdiction on the High Court and the Sessions Court the established practice in the matter of applications under Section 439 Cr.P.C. cannot be departed from whenit comes to applications under Section 438 Cr.P.C. Basically both the provisions have concern for the personal freedom of the citizens and are drafted in the background of the basic presumption under Criminal jurisprudence that every person is innocent as long as he is proved to be otherwise.
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