JAIN, J. - (1.) THE petitioner has filed this second bail application under Section 438 Cr. P. C. before this Court on 7. 2. 2005 after dismissal of his first bail application u/s 438 Cr. P. C. on 1. 2. 2005.
(2.) ONE Shri Harpreet Singh, an official of Municipal Board, Hanumangarh Town, lodged a FIR on 18. 09. 2004 at Police Station, Vishwakarma, Jaipur wherein it was alleged that on 17. 09. 2004 he alongwith Mr. Madan Singh Budhaniya, Executive Officer, Municipal Board, Hanumangarh was travelling in the bus of Sharma Travels from Hanumangarh to Jaipur alongwith two bags of record containing 41 files in one bag and six files in another bag. During the journey, one sumit, member of Municipal Board also came in the said bus at Bus Stand, Pallu. When they reached Jaipur, then he saw that both the bags were missing. During investigation, some evidence came on record that Sumit took some files from the bus and gave to the petitioner, who was travelling in car. Being apprehended with the arrest, the petitioner moved a bail application u/s 438 Cr. P. C. before the Sessions Judge, Jaipur City and the same was dismissed vide order dated 23. 11. 2004. Thereafter, the petitioner moved S. B. Criminal Misc. Bail Application No. 5795/2004 under Section 438 Cr. P. C. before this Court. The case diary was summoned in the matter and the arguments were heard. The involvement of the petitioner was found in the incident and because of the fact that recovery of the files were to be made, the bail application of the petitioner was dismissed by this Court on 1. 2. 2005. This second Bail Application hearing S. B. Cr. Misc. IInd Bail Application No. 783/2005 was filed on 7. 2. 2005 and the same was listed on 8. 2. 2005. During course of arguments, a question arose as to whether second bail application u/s 438 Cr. P. C. is maintainable or not? The time was sought by the learned counsel for the petitioner, which was allowed. Thereafter, arguments were heard and concluded from both the sides. The learned counsel for the petitioner has cited number of judgments of this Court to show that Second Bail Application u/s 438 Cr. P. C. are being entertained and they have been allowed also. Some judgments are to the effect wherein Second and Fourth Bail Applications u/s 438 Cr. P. C. were allowed but, there was no discussion as to whether the Second Bail Application u/s 438 Cr. P. C. is maintainable or not? In some cases, an objection was raised about the maintainability of the Second Bail Application u/s 438 Cr. P. C. and it was held that in the changed circumstances, the Second Bail Application can be entertained. This Court in other cases has taken a view that Second Bail Application u/s 438 Cr. P. C. is not maintainable. 7 (i) In the case of Ramgopal vs. State of Rajasthan (1), the said question was considered and after discussion, it was held that on change of circumstances, subsequent or Second Bail Application u/s 438 Cr. P. C. is maintainable. 7 (ii) In Babulal vs. State of Rajasthan (2), this Court considered the issue as to whether the Second Bail Application u/s 438 Cr. P. C. is maintainable or not? This Court held that Second Bail Application for anticipatory bail u/s 438 Cr. P. C. is maintainable only on the basis of new facts and in the changed circumstances. 7 (iii) In the case of Vishnu Nath Mathur vs. State of Rajasthan (3), this question was again considered as to whether Second Bail Application u/s 438 Cr. P. C. is maintainable or not and after considering the issue, it was held that Second Bail Application u/s 438 Cr. P. C. is maintainable on medical ground and in the changed circumstances.
(3.) IN the following cases, the Second, Third and Fourth Bail Applications u/s 438 Cr. P. C. were entertained but, the issue as to whether the subsequent or Second Bail Application u/s 438 Cr. P. C. is maintainable or not, was not considered :- (1) Nahar Singh vs. State of Rajasthan (4), (2) Yad Ram vs. State of Rajasthan (5), (3) Bhagwan Singh vs. State of Rajasthan (6), (4) Bhag Singh vs. State of Rajasthan (7), (5) Islam Mohammed vs. State of Rajasthan (8), (6) Smt. Premlata vs. State of Rajasthan (9) and (7) Jetha Ram vs. State of Rajasthan 9 (i) IN Mitthu vs. State of Rajasthan (11), this Court considered the question as to whether the Second Bail Application u/s 438 Cr. P. C. is maintainable or not and it was held that Second Bail Application is not maintainable. 9 (ii) IN Suresh Chand vs. State of Rajasthan (12), the question as to whether the Second Bail Application u/s 438 Cr. P. C. is maintainable or not, this Court took a view that second bail application u/s 438 Cr. P. C. is not maintainable. The learned Additional Advocate General Mr. Mohd. Rafique submits that apart from the aforesaid judgments of this Court, there are other judgments of other High Courts wherein it has been held that the Second Bail Application u/s 438 Cr. P. C. is not maintainable. The Division Bench of the Kolkata High Court in Pawan Kumar Beriwal vs. State of West Bengal (13), considered the issue as to whether Second Bail Application u/s 438 Cr. P. C. is maintainable or not? The Division Bench held that Second Bail Application for anticipatory bail is not maintainable. ;