- (1.) We have heard the learned counsel for the parties. The Division Bench while dealing with group of applications C.R.M. No. 5123 of 2010 Sri Sudip Sen vs. The State of West Bengal with C.R.M. No. 4559 of 2010 Sri Suman Saha @ Kousik Saha vs. State of West Bengal & Ors. with C.R.M. No. 4457 of 2010 Jayanta Deb vs. The State of West Bengal, wherein the lead application is that of Sri Sudip Sen, seeking pre-arrest bail, are of the view that the decision of this Court rendered by the Full Bench in the case of Maya Rani Guin and etc. vs. State of West Bengal, 2003 CrLJ 1, needs reconsideration and has referred the following questions for reconsideration of the Full Bench decision in Maya Rani Guin's case (supra) and directed the matter to be placed before the Chief Justice for decision by a Larger Bench by framing the following questions:- "(A) Even though the Full Bench decision of the Jaipur Bench of the Rajasthan High Court in Ganesh Raj v. State of Rajasthan (supra), is at best, of a persuasive value, we feel that since even after taking note of Full Bench decision of our Court in Maya Rani Guin and etc. v. State of West Bengal (supra), a contrary decision thereto was arrived at -altogether, ratio of the Full Bench decision of the Jaipur Bench of the Rajasthan High Court in Ganesh Raj v. State of Rajasthan (supra) should not be frittered away. (B) The Full Bench in Maya Rani Guin's case (supra), was preliminarily dealing with a situation where, upon grant of an Order under Section 438, Cr. P.C., the Petitioner went to submit himself before the Regular Court. But he was not taken into Custody on the basis of a fiction of Law. He again chose to seek similar relief. (C) Whereas the question before us as to whether in the event there is some unimpeachable document or some unassailable situation very much existing at the time the Application was refused at the first instance not being brought to the notice of the Court. Will the same absolutely forbade the Applicant from retrieving his lost fortune ? (D) The interpretation of Ansari, J. in Paragraph 21 of the decision of Maya Rani Guin and etc. v. State of West Bengal (supra) that : "......... We are of the view that the second application for anticipatory bail, even if new circumstances develop after rejection or disposal of the earlier application, is not maintainable" on the premises founded in Paragraph 20 "....... We are of the view 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......" also requires a fresh look as to whether in a given case there may be a change in the situation and mollification of the accusations upon submission of the Report in final form at the instance of the investigating Agency. (E) The Division Bench decision of Madhya Pradesh High Court in Imratlal Vishwakarma & Ors. v. State of U.P. reported in 1997(1) Crimes 289 at Paragraph 13 has held : '......... However, in our opinion, no such fetters can be put or applied on the second petition. Second petition filed under Section 438, Cr. P.C. has to be decided on its merits even if the earlier application was rejected on its merits. It shall, however, be open for the Court to reject it even summarily on the ground that the said second petition is nothing but a repetition of the earlier petition and no new ground has been disclosed in the second petition. This may take care of the apprehension that if the second applications are held to be tenable, it may lead to misuse of the said provision and the Courts would be flooded with such repeated petitions.'
(2.) The said Division Bench of Madhya Pradesh High Court in Imratlal Vishwakarma & Ors. v. State of U.P. (supra) took cue from an earlier Authority, which relied on the decision of Supreme Court in Babu Singh v. State of U.P., 1978 1 SCC 579 and applied the principles laid down in the said decision. (F) Both, the Full Bench decision of Jaipur Bench of the Rajasthan High Court in Ganesh Raj v. State of Rajasthan (supra) as well as the Division Bench decision of Madhya Pradesh High Court in Imratlal Vishwakarma & Ors. v. State of U.P. (supra)- have read into the Constitution Bench decision of Gurbaksh Singh Sibba etc. v. The State of Punjab (supra) and it did not fall in line with the views expressed by the Ansari, J. for the Full Bench in Maya Rani Guin's case (supra). (G) Furthermore, the question raised by Shri Sanyal that till such time a person is intercepted, his right to move an Application under Section 438 subsists, which has also not been faulted by the learned Public Prosecutor for the State, has to be understood in view of the decision of Imratlal Vishwakarma & Ors. v. State of U.P (supra), where the Division Bench of the Madhya Pradesh High Court held : " ........there is no statutory prohibition like the prohibition contained in section 397(3) barring second petition under section 438, Cr. P.C. ........" and felt that "the Court should avoid reading words in to said Section which are not to be found therein." (H) Although, on an absolute different context, the Full Bench in Maya Rani Guin and etc. v. State of West Bengal (supra), did not notice the earlier Full Bench decision in Diptendu Nayek v. State of West Bengal, 1989 1 CalLT 193, where it was deciding the question with regard to the concurrent powers of the High Court and the Sessions Court in relation to exercise of power under Section 438, Cr. P.C. (I) In the event, the Full Bench had taken note of Babu Singh & Ors.(supra) case where Krishna Iyer, J., writing the Judgment of the said decision, while considering the question of efficacy of bail held in Paragraph 7 : ".......... The whole issue, going by decisional material and legal literature, has been relegated to a twilight zone of the criminal justice system. Courts have often acted intuitively or reacted traditionally, so much so the fate of applicants for bail at the High Court level and in the Supreme Court, has largely hinged on the hunch of the bench as an expression of "judicial discretion". A scientific treatment is the desideratum." In Paragraph 8, Their Lordships further held : "The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden on the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process ... .. ..." (J) The Constitution Bench in Kartar Singh v. State of Punjab, 1994 3 SCC 569 and in State of M.P. & Anr. V. Ram Kishna Balothia & Anr., 1995 3 SCC 221 has held that liberty reserved under Section 438, Cr. P.C., is a statutory right. It does not flow from the sanctum sanctorum of Article 21. Since it is a statutory right, how the right is to be exercised ? Is a question, which was not answered by Ansari, J. on behalf of the Full Bench. (K) The Constitution Bench in Gurbaksh Singh Sibbia etc v. The State of Punjab (supra) is not only a Classics Locus, but is, perhaps, the Magna Carta in the field of pre-arrest bail as understood within the ambit of Section 438, Cr. P.C of the New Code of 1973. Ansari, J., Speaking Voice of the Full Bench in Maya Rani Guin and etc. v. State of West Bengal (supra), in our considered view, did not make a wholesome perusal of the Constitution Bench decision. Particularly, Paragraph 7, 13, 20 and 35 of the Constitution Bench decision in Gurbaksh Singh Sibbia etc. v. The State of Punjab (supra) was not giving its due regard by Ansari, J. while writing the Judgment for the Full Bench in Maya Rani Guin's case (supra).
(3.) The proposition, which has been rightly argued by Shri Sanyal so long as the Applicant has not been arrested and as discussed by the Constitution Bench, did not receive its proper appreciation in the hands of Ansari, J. for the Full Bench in Maya Rani Guin and etc. v. State of West Bengal (supra). (L) Even though Ravindra Saxena's case (supra) cannot be a obiter dictum as shown by Shri Sanyal and relied upon by the learned Public Prosecutor, we have to take care of the fact that the Supreme Court after noticing that it was a third Application, entertained the Matter on merit and allowed the Application, which was earlier refused by the high Court. As such, in the Twilight of the decision of Ravindra Saxena v. State of Rajasthan (supra) the Full Bench decision in Maya Rani Guin and etc. v. State of West Bengal (supra) stands partially eclipsed. It requires to be pondered as to whether at all, the curt finding arrived at in Paragraph 21 by Ansari, J. for the Full Bench in Maya Rani Guin and etc. v. State of West Bengal (supra) should still hold the field ? (M) Wimpled in the longing shadows of K. L. Verma v. State, 1998 9 SCC 348, the Full Bench in Maya Rani Guin and etc. v. State of West Bengal (supra) so long it held the Fort. Since K. L. Verma's case (supra) was partially eclipsed by the finding of the Supreme Court in Sunita Devi v. State of Bihar & Anr., 2005 1 SCC 608 as per incuriam obviously, the teeth in the Full Bench decision of Maya Rani Guin and etc. v. State of West Bengal (supra) is wilted in the puddle of once upon a time situation. (N) Adhering to the logistics of Full Bench decision in Maya Rani Guin and etc. v. State of West Bengal (supra), in view of the changed situation, would be listening to the old wives tale." In the case of Maya Rani Guin (supra) the Chief Justice was required to constitute a Larger Bench, i.e., three-Judge Bench for considering the following questions which have been referred by the Division Bench. In Maya Rani Guin's case (supra) it has been held in paragraph 6 of the judgment as follows : "6. The following questions have been framed by the Division Bench and referred to the larger Bench for adjudication. (i) Whether second application for anticipatory bail u/S. 438, Cr. P.C. is totally barred even if new circumstances develop after rejection or disposal of an earlier application for anticipatory bail ? (ii) Whether petitioners can file a fresh application u/S. 438 of the Code and whether same will be maintainable in the circumstances of the case and in view of the following observations/directions of the Apex Court in K. L. Verma's case (supra) : "As far as the order of 9-10-96 is concerned since it proceeds on a misreading of Salauddin's case, we modify the order by directing that anticipatory bail will ensure till the regular Court decides the question of grant of bail and for a week thereafter, so that if the regular Court refuses bail, the accused person can, if so advised, move the higher Court ?" (iii) What is the exact nature of the remedy available to the petitioners in the circumstances of the case and in view of the last direction given by the Apex Court in the above-quoted observations, namely : ".......... the accused person can, if so advised, move the higher Court" ? What was the exact remedy contemplated by the Supreme Court in the above-quoted observations ? (iv) Whether it was the intention of the Supreme Court in the above-quoted observations that in the similar circumstances of the instant case, High Court should invoke its inherent/revisional jurisdiction and examine the correctness of the order of the Magistrate refusing bail to the petitioners on merit irrespective of whether such order discloses good reasons therefor or not and may in an appropriate case remand back the case again to the Magistrate for consideration of the bail prayer of the petitioners afresh ? Further can we reject similar application on merit if it is found that order by which Magistrate rejected the prayer for bail discloses good reasons therefor particularly when it is our opinion that we cannot grant bail or anticipatory bail under the circumstances of the case ? (v) Whether this petition is at all maintainable or whether some relief can still be granted to the petitioners by suo motu invoking our inherent/revisional jurisdiction ?";