JUDGMENT
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 Section 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 v. State, 1992 (2) APLJ 366., a learned Judge of this Court took the view that a second application under Section 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 v. 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-section (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 Section 439 Cr.P.G 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 Section 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 afer 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 deep- rooted 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 v. Manipur Administration, AIR 1964 Manipur 39. 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 Cr.P.C. for purposes of culling out whether the Legislature intended barring of a second application under Section 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 CrJP.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 when it 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.
4. The decision of the Division Bench of the Calcutta High Court in Amiya Kumar Sen v. State of West Bengal, 1979 Crl. LJ. 288., to the effect, if the petitioner approaches the Court of Session for the relief under Section 438 and if his prayer is rejected he will not be entitled again to approach the High Court for the same relief on the same ground under that section, in our opinion does not comprehend different possibilities to which life and matters are open, imposes a bar not introduced therein by the Legislature, and impairs the right to personal freedom. Further as observed by the Supreme Court, generalisation of matters, which rest on discretion and universal application of facts in a hypothetical case, when facts are bound to differ from case to case would frustrate the very purpose of incorporating Section 438 into Statute book. Therefore the view expressed by Radhakrishna Rao, J. in M. Rama Rao’s case (1 supra) that the conduct of the petitioners from the date of the dismissal of the first application till the filing of the second application is the relevant prime factor to hold that the second bail application is not maintainable, may be at best a ground to dismiss the second application. However that conduct cannot form basis for holding that the second application is not maintainable since it amounts to generalisation of matters culminating in frustration of the very purpose in legislating Section 438 Cr.P.C.
5. One more aspect that can contextually be taken note of is that a Full Bench of this Court in Sk. Khasim Bi v. State, AIR 1936 A.P. 345., held that filing of the charge-sheet by the police and issuing warrant after taking cognizance by the Magistrate do not put an end to the power to grant bail under Section 438 O.P.C. In the light of this decision, the possibility of one or more of the accused being found during the course of investigation to be not at all or slightly liable in criminal law cannot be ruled out in which case barring a second application for grant of anticipatory bail would impair the very right of the concerned accused to personal liberty culminating in violation of Article 21 of the Constitution of India. This, we are mentioning simply to counter the factor illustrated by our learned brother, Radhakrishna Rao, J.
6. The learned Public Prosecutor no doubt, sought to contend that entertaining a second application under Section 438 Cr JP.G is likely to encourage evading the arrest thereby hampering investigation and consequent delay in filing the charge-sheet. He also submitted that this hampering and delay may have the effect of enabling the co-accused arrested to move the Court for bail under Section 167 Cr.P.C. on the ground that the charge-sheet is not filed within the prescribed period. No doubt, there appears to be some truth in what he submits but that possibility cannot be a factor to toe in line with the view of our learned brother that second application under Section 438 Cr.P.C. is not maintainable, because right to personal freedom and liberty is one guaranteed by the Constitution, subject of course to the restraints and limitations envisaged by law. While disposing of the application under Section 438 Cr.P.C. a balance has got to be struck at between the fundamental right guaranteed vis-a-vis the process of police investigation by exercising judicial discretion during the course of which the factors submitted by the learned Public Prosecutor namely hampering of investigation, delayed filing of charge-sheet and the resultant applications by the co-accused under Section 167 Cr.P.C. would carry their due weight. The factor submitted thus are more relevant and important in considering the merits and demerits of the application under Section 438 CrJP.C. and not for holding that second application under Section 438 Cr.P.C. is not maintainable.
7. For the aforementioned reasons we hold that there is no bar for maintaining successive applications under Section 438 Cr.P.C. muchless the second application. Office shall post the Criminal Petition before a single Judge for disposal of the same on merits.