Malla Ramarao And Ors. vs The State on 3 October, 1991
Cites 4 docs
Citedby 2 docs
Andhra High Court
Malla Ramarao And Ors. vs The State on 3/10/1991
1. 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.
2. 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.
3. 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.
4. 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.
5. Sub-section (1) of S. 438 of the Code of Criminal Procedure reads
"Section 438. Direction for grant of bail to a person apprehending
(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.
6. In similar circumstances, a Division Bench of the Calcutta High
Court in Amiya Kumar v. State of W.B. 1979 Cri LJ 288, rejected the
application for anticipatory bail for the second time as not
maintainable after the rejection of the first one by the Court of
7. 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.
8. 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.
9. 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
10. 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.
11. Application dismissed.