- (1.) Heard the learned counsel for the parties.
(2.) These matters have come to be placed before this Bench of five Judges by reason of an order passed by a three-Judge Bench on 04.08.2010 pursuant to a reference made by the Division Bench of this Court while dealing with group of applications which felt 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. The Full Bench after examining the issue thought it appropriate that the matter is referred to a Bench of five- Judges by passing the following order :- "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., 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.'
(3.) 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 Sibbia 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 reported in (1989) 1 Cal LT (HC) 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.";