Allahabad High Court In another anticipant bail application for offences under Sections 363, 366, 376 of the Penal Code, 1860( ‘ IPC ’) and 3 or 4 of the Protection of Children from Sexual Offences Act, 2012( ‘ POCSO Act ’), Suresh Kumar Gupta, J. spoke that Section 439 law of Criminal procedure, 1973( ‘ CrPC ’) relates to the Constitutional right of the accused whereas Section 438 CrPC is to his statutory right. Thus, it was held that the second and successive anticipant bail operation isn't supportable.
The issue, in this case, was whether a second anticipant bail application is maintainable or not in this matter.
The Court stated that there's no substantial difference between anticipant 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 a person approaches the Court after his arrest
The Court further stated that evidently the authority to grant anticipant bail doesn't flow from Article 21 of the Constitution of India, but it has been conferred by the Statute laid down by the Parliament, whereas provisions contained in Section 439 flow from Article 21 of the Constitution. Thus, if the bail application under Section 439 of the accused is dismissed once, he can move a second and successive bail application on the ground of physical revision in the factual situation between the earlier bail application and the subsequent one, but the filing of second and successive bail applications based on new arguments and new twists on the same facts can not 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, hence, if the first application of the accused who's in custody is dismissed on merits and the trial is delayed, the accused has a right to make a second bail application on the ground of delayed trial. Section 438 shouldn't be set to scurrility in the case of an unscrupulous accused.
hence, the Court held that the second and successive anticipant bail application isn't maintainable, as every aspect has been dealt with by the coordinate jurist of this Court in the first anticipant bail application. Further, the applicant has already challenged the summoning order to face trial under Section 319 CrPC using an application under Section 482 CrPC which was disposed of by this Court with a direction to the applicant to seek the remedy of regular bail.
Therefore, it was held that this isn't a fit case for anticipant bail and is at this moment declined. However, it's provided that if the applicant appears before the Trial court and applies for bail, then his bail operation shall be considered and decided as per the law propounded by the Supreme Court.