Earlier this week, Allahabad High Court mentioned about the second and successive anticipatory wherein it stated that bail application is not maintainable. Also, mentioning about seeking anticipatory bail it further stated that under Section 438 of CrPC it is only a statutory right. Justice Suresh Kumar Gupta further observed that while Section 439 of CrPC (provision getting regular bail pleas) flows from Article 21 of the Constitution of India, Section 438 of CrPC is merely a statutory right and the power to give anticipatory bail is not given by Article 21 of the Constitution.
Surprisingly, in Sushila Aggarwal vs State (NCT of Delhi) and others, the SC mentioned the illogical interpretation of not considering Section 438 of CrPC flowing from Article 21 of the Constitution. Referring to the precedent judgements which mention Article 21 is not related to Section 438 CrPC, the SC mentioned it conflicted with the broad terms declared by the Constitution Bench of the Top Court in Gurbaksh Singh Sibbia Etc vs State of Punjab 1980 AIR 1632.
Regarding the nature of Section 439 of the CrPC, the Court further noted that if the accused’s regular bail application is denied, he may file a second and subsequent bail application on the basis of a substantial change in the facts between the first and the subsequent applications. However, the court also advised not to fill out second or subsequent bail applications on the basis of new arguments/twists based on the previous facts.
Additionally, the provision of speedy trial is a Constitutional right of the accused granted to him by Article 21 of the Constitution, the court gave the right to make a second bail application only if the first application of the accused is dismissed on merits and has delayed the trial. Talking about the nature of Section 438 of CrPC, the court clearly mentions that the second/subsequent anticipatory bail application is not maintainable.