Allahabad high Court: In a second anticipatory bail application for offences under Sections 363, 366, 376 of the Penal Code, 1860 (‘IPC’) and 3 or 4 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’), Suresh Kumar Gupta, J. said that Section 439 Code of Criminal procedure, 1973 (‘CrPC’) relates to Constitutional right of the accused whereas Section 438 CrPC to his statutory right. Thus, it was held that the second and successive anticipatory bail application is not maintainable.

The issue in this case was whether second anticipatory bail application is maintainable or not in this matter?

The Court said that there is no substantial difference between anticipatory bail under Section 438 CrPC and regular bail under Section 439 CrPC, as regards the appreciation of the case as to whether bail is to be granted. The only distinction is that under Section 438, the person who approaches the Court apprehends that he may be arrested without any basis whereas under Section 439, such person approaches the Court after his arrest

The Court further said that, evidently the power to grant anticipatory bail does not flow from Article 21 of the Constitution of India, but it has been conferred by the Statute enacted by the Parliament, whereas provisions contained in Section 439 flow from Article 21 of the Constitution. Thus, if bail application under Section 439 of the accused is dismissed once, he can move second and successive bail application on the ground of substantial change in factual situation between the earlier bail application and the subsequent one, but filing of second and successive bail applications based on new arguments and new twists on the same facts cannot be encouraged.

The Court also stated that speedy trial is a Constitutional right of the accused provided to him by Article 21 of the Constitution, thus, if the first application of the accused who is in custody is dismissed on merits and the trial is delayed, the accused has a right to make second bail application on the ground of delayed trial. The provisions of Section 438 should not be put to abuse at the instance of unscrupulous accused.

Thus, the Court held that the second and successive anticipatory bail application is not maintainable, as every aspect has been dealt with by the coordinate bench of this Court in the first anticipatory bail application. Further, the applicant has already challenged the summoning order to face trial under Section 319 CrPC by means of application under Section 482 CrPC which was disposed of by this Court with a direction to the applicant to seek remedy of regular bail.

Thus, it was held that this is not a fit case for anticipatory bail and is hereby rejected. However, it is provided that if the applicant appears before the Trial court and applies for bail, then his bail application shall be considered and decided as per the law propounded by the Supreme Court.

[Raj Bahadur Singh v. State of UP, 2022 SCC OnLine All 759, decided on 15-11-2022]

Advocates who appeared in this case :

Counsel for Applicant:- Advocate Rajeev Giri,Raj Kumar Singh;

Advocate Sheshadri Trivedi;

Counsel for Opposite Party:- Government Advocate.

*Apoorva Goel, Editorial Assistant has reported this brief.

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