Malla Ramarao and Others vs The State

This is an application u/S. 438 of Code of Criminal Procedure for the grant of an anticipatory bail by the accused in Cr. No. 39 of 1991 to Kottur Police Station, Srikakulam District who were charged for the offence u/Ss. 302, 324 read with 34, IPC.

The petitioners unsuccessfully made attempts both before the Sessions Court twice and one time in this Court for grant of anticipatory bail. After the dismissal of their application before the Sessions Court, they moved this Court for the Grant of anticipatory bail which met the same fate. Again they tried their luck before the Sessions Court but of no avail. For the second time they are before this Court seeking anticipatory bail. Their plea is that they have been implicated in the case due to malice and enmity, that the Ist petitioner is a Branch Post Master and the second petitioner is a sick person suffering from isnophilia.

The learned Public Prosecutor strongly opposed the application contending that second application u/S. 438, Cr.P.C. either before this Court or before the Sessions Court in connection with the same offence on the same grounds is not maintainable.

On the other hand, the contention of the learned counsel for the petitioner Sri A. Surya Rao is that even if the Sessions Court rejected the application for the second time on the same grounds, a second application before the High Court is maintainable.

Sub-section (1) of S. 438 of the Code of Criminal Procedure reads thus :

"Section 438. Direction for grant of bail to a 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 think fit, direct that in the event of such arrest he shall be released on bail."

A close reading of the above sub-section would make it clear that the petitioner "may apply to the High Court or the Court of Session" for the grant of anticipatory bail. The ''or'' a conjunction was used in between the two forms available to a person i.e. the High Court and the Court of Session. A person can apply for anticipatory bail either to the Court of session or in the alternative to the High Court. The word ''or'' has been used in alternative or exclusive sense. This would be evident from the use of the words ''that Court may'' in the section indicating singular number.

In similar circumstances, a Division Bench of the Calcutta High Court in Amiya kumar Sen Vs. State of West Bengal, , rejected the application for anticipatory bail for the second time as not maintainable after the rejection of the first one by the Court of Session.

In the instant case we have to consider a second application either before the Sessions Court or before the High Court is maintainable. According to S. 438 Cr.P.C. if a person has got any apprehension or belief that he may be arrested on an accusation of having committed a non-bailable offence, he may apply either to the High Court or to the Court of Session. The moment he filed an application and the same has been disposed of either in his favour or against him, indicates that the petitioner or petitioners are aware of the accusation that has been levelled against them. When he is aware of the accusation levelled against him and the Court passed an appropriate order rejecting his application, as a dutiful citizen he is bound to surrender before the concerned Police. Without surrendering before the Police and escaping from being arrested, they cannot be permitted to file an application for the second time particularly the conduct that is being exhibited by these petitioners. In normal course, when the first application was filed we may not accept the contention of the Police that the petitioner is absconding and he is evading arrest. But when the second application is filed, the contention of the Public Prosecutor that the petitioner is absconding has to be accepted.

The plea of the petitioners that they are not absconding they are very much available to the Police and every day they are passing through the lane in front of the Police Station and they are not being arrested by the Police cannot be accepted particularly after the rejection of their applications twice by the Court of Session and once by this Court.

To be an absconder, in the eye of law it is not necessary that a person should have run away from his home, it is sufficient if he hides himself to evade the process of law, even if the hiding place be his own home. The conduct of the petitioners from the date of the dismissal of the first application till filing of the second application is relevant.

If the accused put up a case that there are changed circumstances by filing a second application it indicates that they are aware of the fact that investigation is going on and they are not available to the Police for arrest or absconding and that they are getting information through some one else. Such persons are not entitled to take advantage of the changed circumstances by filing a second application for anticipatory bail which prima facie is barred under the provision of S. 438 either before the Court of Session or before the High Court, in view of the conduct exhibited by them. Therefore, I am firmly of the view that a second application for the grant of anticipatory bail either before the Court of Session or before the High Court is not maintainable u/S. 438, Cr.P.C. and the contention of the learned Public Prosecutor must be upheld.

The application is dismissed.

Application dismissed.