Bimal Lochan Das Vs. State of Orissa - Court Judgment

Excerpt:
criminal - anticipatory bail - grant of - section 438 of criminal procedure code, 1973(cr.p.c.) - two vigilance cases had been filed against petitioner - petitioner in apprehension of arrest previously filed application for grant of anticipatory bail under section 438 of cr.p.c. - court granted anticipatory bail for period of two months - subsequently prosecuting agency filed application before concerned authority seeking sanction for initiating another criminal proceeding against petitioner along with his wife as well as his two sons - petitioner therefore filed present petition under section 438 of cr.p.c. for grant of anticipatory bail - held, as per section 438 of cr.p.c. any person can be granted anticipatory bail if he has reasonable apprehension of arrest in connection with offence lodged against him - in instant case petitioner had previously been granted anticipatory bail - now due to change of circumstances he had reasonable apprehension of arrest - therefore it can be said that similar circumstances for grant of anticipatory bail under section 438 of cr.p.c. existed - hence, petitioner entitled for grant of anticipatory bail - petition allowed - state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - and if he is arrested, his reputation in the state, particularly in his constituency, shall be tarnished and there is also less likelihood of his fleeing from justice as well as the fact that a surcharge proceeding is also pending against the petitioner, allowed the application under section 438, cr. 30,000/- with two sureties solvent for the like amount to the satisfaction of the officer effecting arrest on conditions that he shall make himself available to the investigating agency for interrogation as and when required and that he shall not tamper with the evidence in any manner. , the supreme court observed that the principle of res judicata are not applicable to bail applications but repeated filing of bail applications, without any change of circumstances could lead to a bad precedent. by the court were satisfied when the petitioner was granted anticipatory bail by this court in the previous application. 30,000/- (rupees thirty thousand) with two sureties each for the like amount to the satisfaction of the arresting officer subject to the condition that he shall appear before the court below when process is issued by the court below, if cognizance is taken of the offences after filing of charge sheet and shall move for bail before the court below, which is filed, shall be dealt with in accordance with law.orderm.m. das, j.1. heard mr. s. n. mohapatra, learned counsel for the petitioner and mr. d. k. mohapatra, learned counsel for the vigilance department.2. this application has been filed by the petitioner for grant of anticipatory bail under section 438, cr.p.c.3. it appears from the record that two vigilance cases have been registered against the petitioner, one being for illegal sanction of loans as president of baripada urban co-operative bank ltd. and the other for giving direct appointments to certain employees in the said bank. the said cases have been numbered as balasore vigilance p.s. case no. 35 of 2005 and 36 of 2005 corresponding to vigilance cases of even number in the court of the learned vigilance judge-cum-chief judicial magistrate, balasore. the petitioner was before this court in blapl no. 7299 of 2005 in respect vigilance p.s. case no. 35 of 2005. this court by an elaborate order dated 19.9.2005 discussing the materials available and other submissions made by the respective counsel for the parties, holding that the petitioner is a sitting m.l.a. and if he is arrested, his reputation in the state, particularly in his constituency, shall be tarnished and there is also less likelihood of his fleeing from justice as well as the fact that a surcharge proceeding is also pending against the petitioner, allowed the application under section 438, cr.p.c. directing that in case of arrest of the petitioner in the aforesaid case, he shall be released on bail of rs. 30,000/- with two sureties solvent for the like amount to the satisfaction of the officer effecting arrest on conditions that he shall make himself available to the investigating agency for interrogation as and when required and that he shall not tamper with the evidence in any manner. however, this court directed that the said order shall remain in force for a period of two months from the date of the said order dated 19.9.2005.4. the petitioner has stated that after passing of the above order, on 3.11.2005, the superintendent of police vigilance cell, cuttack informed the petitioner to make himself available on 9.11.2005 at 3.00 p.m. in vigilance unit office, bhubaneswar. accordingly, the petitioner alongwith his counsel appeared on the said date and was examined and interrogated and the investigating officer informed him that neither his arrest nor grant of bail was necessary. as, in the meantime, the s.p., vigilance cell cuttack wrote a letter to the bank, seeking sanction for prosecution of certain bank officials as per balasore vigilance p.s. case no. 35 of 2005, the petitioner being apprehensive that a charge sheet was contemplated to be filed not only against him, but also his seriously ailing wife and his two sons, who, according to him, are in no way connected to the transactions of the bank though they are the directors of m/s. ambika hotel and estates private ltd. which was a loanee of the bank, has filed the present application for grant of anticipatory bail.5. mr. s. n. mohapatra, learned counsel for the petitioner submits that the wife of the petitioner is sixty five years of age and is ailing for the last few years suffering from a brain disease, i.e. 'subarachnoid haemorrage' who was admitted to the kalinga hospital on 27.1.2007 and was removed to amrita institute of medical sciences and research centre, kochi for surgery. after the above surgery being undertaken, though the wife of the petitioner was discharged, but due to various complications, she is under treatment at kalinga hospital, bhubaneswar.6. mr. d. k. mohapatra, learned counsel appearing for the vigilance department, per contra, submits that the allegation in the fir reflects a tip of the ice berg and many materials have come out during the investigation, which would, prima facie, show the guilt of the accused who is a public servant. he further submits that taking the allegations as above, on its face value, it can never be said that offence under section 13 (1)(d) of the prevention of corruption act or under sections 120b/420, ipc is not made out and during investigation, it has also come out that the petitioner would be liable for offence under section 409, ipc. mr. mohapatra, in his usual convincing manner highlighted the various activities of the petitioner while he was the president of the bank, such as, granting cash credit facility in favour of m/s. ambika hotel and estate private ltd. which was his family business and enhancing the said limit, without taking proper security and thereby jeopardizing the interest of the bank. he vehemently argued, placing reliance on various guidelines of the reserve bank, that grant of such loan and enhancement of the limit, were highly irregular. mr. mohapatra, has not faltered to use the phrase that the action of the petitioner amounts to a pre-planned conspiracy.7. coming to the question of grant of anticipatory bail, mr. d.k. mohapatra, places reliance on the decision in the case of state of t.n. v. s.a. raja clt (2006) (supp.) (crl.) 25 (sc). he also places reliance in the case of d.k. ganesh babu v. p.t. manokaran and ors. 2007 air scw 1896. to buttress his argument in support of the contention that at this stage, anticipatory bail should not be granted to the petitioner, mr. d.k. mohapatra, submits that the investigation being at a pre-sanction stage, the conduct of the accused in procuring confidential and privileged documents, which have been annexed to the bail application speaks volume about he intention and also the damage he is able to cause to the prosecution evidence if he is granted anticipatory bail. relying upon the decisions in the case of enforcement officer, ted. bombay v. bher chand tikaji bora and anr. (2000) 18 ocr (sc) 109 and narinderjit singh sahni and anr. v. union of india and ors. : air2001sc3810 , mr. d.k. mohapatra, submits that the supreme court in no uncertain terms has held that anticipatory bail should not be granted to such white coloured criminals unless it is established on materials that he is being harassed by the investigating agency and anticipatory bail cannot be granted only because the accused is available for interrogation. mr. mohapatra, submits that the supreme court has also commenced the contention that an economic offence effects entire community of people and thus, is to be dealt with utmost severity and the gravity of massive economic genocide cannot be belittled by terming it as a major offence of cheating or depriving someone of property. basically, therefore, mr. mohapatra objects to the prayer made by the petitioner on the grounds that the repeated prayer for anticipatory bail by filing successive applications, cannot be maintained and since allegation of commission of economic offence to a high magnitude is made, the petitioner should not be granted anticipatory bail.8. addressing to the question with regard to the maintainability of a second petition for anticipatory bail, it is worthwhile to note that in the case of d.k. ganesh babu (supra), the supreme court relying upon the decision in the case of gurbakash singh v. state of punjab : 1980crilj1125 observed as follows:the facility which section 438 of the code gives is generally referred to as 'anticipatory bail'. this expression which was used by the law commission in its 41st report is neither used in the section nor in its marginal note. but the expression 'anticipatory bail' is a convenient mode of indication that it is possible to apply for bail in anticipation of arrest. any order of bail can be effective only from the time of arrest of the accused. wharton's law lexicon explains 'bail' as 'to set at liberty a person arrested or imprisoned, on security being taken for his appearance'. thus bail is basically release from restraint, more particularly the custody of police. the distinction between an ordinary order of bail and an order under section 438 of the code is that whereas the former is granted after arrest, and therefore means release from custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest....9. from the provisions of section 438, cr.p.c. it is clear that where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he can apply to this court or the court of session for a direction under that section that in the event of such arrest, he shall be released on bail. section 438, cr.p.c. also prescribes the facts to be considered by the court while granting such an order. the decision in the case of state of t.n. (supra) on which, mr. d.k. mohapatra, places reliance, was a case concerning repeated filing of bail applications under section 439, cr.p.c. without any change of circumstances. this court is of the considered view that the ratio of the said decision cannot be made applicable to a second petition filed under section 438, cr.p.c. as a matter of fact, in the said decision, even in the case of application under section 439, cr.p.c., the supreme court observed that the principle of res judicata are not applicable to bail applications but repeated filing of bail applications, without any change of circumstances could lead to a bad precedent.10. from the fact of the present case, it is revealed that the petitioner approached this court previously in an application under section 438, cr.p.c. and, as stated earlier, this court favoured the petitioner with an order under the said section, but for a period of two months from the date of passing of the said order. there is a change circumstance as found from the records that now the vigilance has sought for sanction for lodging the prosecution. it can, therefore, be safely held that the investigating agency having sought for sanctionb to lodge the prosecution, the same definitely creates sufficient apprehension in the mind of the petitioner, or his arrest. moreso, when the period for which the order of anticipatory bail was previously granted has passed long since. this court is therefore of the view that the present petition is maintainable.11. with regard to the question as to whether the petitioner should be granted anticipatory bail or not, taking the facts to be considered by the court for granting such an order as prescribed under section 438, cr.p.c. into consideration and further considering the previous order passed by this court, it would be seen that all such facts to be considered as per section 438, cr.p.c. were taken into consideration by this court in its previous order before coming to the conclusion that the petitioner is entitled to an order of anticipatory bail. all the above contingencies are still existing and the apprehension is more fortified at the preset stage when sanction has been sought for to lodge the prosecution.12. no doubt, the ratio of the other decisions of the supreme court cited by mr. d. k. mohapatra, is that the court should not lightly deal with the economic offenders while considering the question of grant of anticipatory bail in the case of enforcement officer, ted. bombay {supra), the offence alleged was committed under fera. in the case of narinderjit singh sahni and another (supra), the question before the supreme court was the right of an accused to get an order of anticipatory bail under section 438, cr.p.c. vis-a-vis his fundamental rights under article 21 of the constitution. the facts of the said cases being entirely different from the present case, the conclusions arrived at by the supreme court in the said decisions cannot, ipso facto, cannot be applied to the facts of the present case.13. in view of the above, coupled with the fact that it has already been adjudicated upon by this court that the facts to be considered under section 438, cr.p.c. by the court were satisfied when the petitioner was granted anticipatory bail by this court in the previous application. i find no reason to withhold such a relief to the petitioner in the present case, as i have already found that in the facts of the present case, the second petition for anticipatory bail can be maintained.14. i, therefore, direct that in the event of arrest of the petitioner in connection with balasore vigilance p.s. case no. 35 of 2005 corresponding to vigilance g.r. case no. 35 of 2005, he shall be released on bail of rs. 30,000/- (rupees thirty thousand) with two sureties each for the like amount to the satisfaction of the arresting officer subject to the condition that he shall appear before the court below when process is issued by the court below, if cognizance is taken of the offences after filing of charge sheet and shall move for bail before the court below, which is filed, shall be dealt with in accordance with law. this order is granted subject to the further condition that the petitioner shall not make any attempt to tamper with the prosecution evidence. this order shall remain in force till submission of final form by the investigating agency.15. the blapl is disposed of.16. urgent certified copy of this order be granted on proper application.

Judgment:
ORDER

M.M. Das, J.

1. Heard Mr. S. N. Mohapatra, learned Counsel for the petitioner and Mr. D. K. Mohapatra, learned Counsel for the Vigilance Department.

2. This application has been filed by the petitioner for grant of anticipatory bail under Section 438, Cr.P.C.

3. It appears from the record that two vigilance cases have been registered against the petitioner, one being for illegal sanction of loans as President of Baripada Urban Co-operative Bank Ltd. and the other for giving direct appointments to certain employees in the said Bank. The said cases have been numbered as Balasore Vigilance P.S. Case No. 35 of 2005 and 36 of 2005 corresponding to Vigilance Cases of even number in the Court of the learned Vigilance Judge-cum-Chief Judicial Magistrate, Balasore. The petitioner was before this Court in BLAPL No. 7299 of 2005 in respect Vigilance P.S. Case No. 35 of 2005. This Court by an elaborate order dated 19.9.2005 discussing the materials available and other submissions made by the respective counsel for the parties, holding that the petitioner is a sitting M.L.A. and if he is arrested, his reputation in the State, particularly in his Constituency, shall be tarnished and there is also less likelihood of his fleeing from justice as well as the fact that a surcharge proceeding is also pending against the petitioner, allowed the application under Section 438, Cr.P.C. directing that in case of arrest of the petitioner in the aforesaid case, he shall be released on bail of Rs. 30,000/- with two sureties solvent for the like amount to the satisfaction of the officer effecting arrest on conditions that he shall make himself available to the Investigating Agency for interrogation as and when required and that he shall not tamper with the evidence in any manner. However, this Court directed that the said order shall remain in force for a period of two months from the date of the said order dated 19.9.2005.

4. The petitioner has stated that after passing of the above order, on 3.11.2005, the Superintendent of Police Vigilance Cell, Cuttack informed the petitioner to make himself available on 9.11.2005 at 3.00 P.M. in Vigilance Unit Office, Bhubaneswar. Accordingly, the petitioner alongwith his counsel appeared on the said date and was examined and interrogated and the Investigating Officer informed him that neither his arrest nor grant of bail was necessary. As, in the meantime, the S.P., Vigilance Cell Cuttack wrote a letter to the Bank, seeking sanction for prosecution of certain Bank officials as per Balasore Vigilance P.S. Case No. 35 of 2005, the petitioner being apprehensive that a charge sheet was contemplated to be filed not only against him, but also his seriously ailing wife and his two sons, who, according to him, are in no way connected to the transactions of the Bank though they are the Directors of M/s. Ambika Hotel and Estates Private Ltd. which was a loanee of the Bank, has filed the present application for grant of anticipatory bail.

5. Mr. S. N. Mohapatra, learned Counsel for the petitioner submits that the wife of the petitioner is sixty five years of age and is ailing for the last few years suffering from a brain disease, i.e. 'SUBARACHNOID HAEMORRAGE' who was admitted to the Kalinga Hospital on 27.1.2007 and was removed to Amrita Institute of Medical Sciences and Research Centre, Kochi for surgery. After the above surgery being undertaken, though the wife of the petitioner was discharged, but due to various complications, she is under treatment at Kalinga Hospital, Bhubaneswar.

6. Mr. D. K. Mohapatra, learned Counsel appearing for the Vigilance Department, per contra, submits that the allegation in the FIR reflects a tip of the ice berg and many materials have come out during the investigation, which would, prima facie, show the guilt of the accused who is a public servant. He further submits that taking the allegations as above, on its face value, it can never be said that offence under Section 13 (1)(d) of the Prevention of Corruption Act or under Sections 120B/420, IPC is not made out and during investigation, it has also come out that the petitioner would be liable for offence under Section 409, IPC. Mr. Mohapatra, in his usual convincing manner highlighted the various activities of the petitioner while he was the President of the Bank, such as, granting cash credit facility in favour of M/s. Ambika Hotel and Estate Private Ltd. which was his family business and enhancing the said limit, without taking proper security and thereby jeopardizing the interest of the Bank. He vehemently argued, placing reliance on various guidelines of the Reserve Bank, that grant of such loan and enhancement of the limit, were highly irregular. Mr. Mohapatra, has not faltered to use the phrase that the action of the petitioner amounts to a pre-planned conspiracy.

7. Coming to the question of grant of anticipatory bail, Mr. D.K. Mohapatra, places reliance on the decision in the case of State of T.N. v. S.A. Raja CLT (2006) (Supp.) (Crl.) 25 (SC). He also places reliance in the case of D.K. Ganesh Babu v. P.T. Manokaran and Ors. 2007 AIR SCW 1896. To buttress his argument in support of the contention that at this stage, anticipatory bail should not be granted to the petitioner, Mr. D.K. Mohapatra, submits that the investigation being at a pre-sanction stage, the conduct of the accused in procuring confidential and privileged documents, which have been annexed to the bail application speaks volume about he intention and also the damage he is able to cause to the prosecution evidence if he is granted anticipatory bail. Relying upon the decisions in the case of Enforcement Officer, Ted. Bombay v. Bher Chand Tikaji Bora and Anr. (2000) 18 OCR (SC) 109 and Narinderjit Singh Sahni and Anr. v. Union of India and Ors. : AIR2001SC3810 , Mr. D.K. Mohapatra, submits that the Supreme Court in no uncertain terms has held that anticipatory bail should not be granted to such white coloured criminals unless it is established on materials that he is being harassed by the investigating agency and anticipatory bail cannot be granted only because the accused is available for interrogation. Mr. Mohapatra, submits that the Supreme Court has also commenced the contention that an economic offence effects entire community of people and thus, is to be dealt with utmost severity and the gravity of massive economic genocide cannot be belittled by terming it as a major offence of cheating or depriving someone of property. Basically, therefore, Mr. Mohapatra objects to the prayer made by the petitioner on the grounds that the repeated prayer for anticipatory bail by filing successive applications, cannot be maintained and since allegation of commission of economic offence to a high magnitude is made, the petitioner should not be granted anticipatory bail.

8. Addressing to the question with regard to the maintainability of a second petition for anticipatory bail, it is worthwhile to note that in the case of D.K. Ganesh Babu (supra), the Supreme Court relying upon the decision in the case of Gurbakash Singh v. State of Punjab : 1980CriLJ1125 observed as follows:

The facility which Section 438 of the Code gives is generally referred to as 'anticipatory bail'. This expression which was used by the Law Commission in its 41st Report is neither used in the section nor in its marginal note. But the expression 'anticipatory bail' is a convenient mode of indication that it is possible to apply for bail in anticipation of arrest. Any order of bail can be effective only from the time of arrest of the accused. Wharton's Law Lexicon explains 'bail' as 'to set at liberty a person arrested or imprisoned, on security being taken for his appearance'. Thus bail is basically release from restraint, more particularly the custody of police. The distinction between an ordinary order of bail and an order under Section 438 of the Code is that whereas the former is granted after arrest, and therefore means release from custody of the Police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest....

9. From the provisions of Section 438, Cr.P.C. it is clear that where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he can apply to this Court or the Court of Session for a direction under that Section that in the event of such arrest, he shall be released on bail. Section 438, Cr.P.C. also prescribes the facts to be considered by the Court while granting such an order. The decision in the case of State of T.N. (supra) on which, Mr. D.K. Mohapatra, places reliance, was a case concerning repeated filing of bail applications under Section 439, Cr.P.C. without any change of circumstances. This Court is of the considered view that the ratio of the said decision cannot be made applicable to a second petition filed under Section 438, Cr.P.C. As a matter of fact, in the said decision, even in the case of application under Section 439, Cr.P.C., the Supreme Court observed that the principle of res judicata are not applicable to bail applications but repeated filing of bail applications, without any change of circumstances could lead to a bad precedent.

10. From the fact of the present case, it is revealed that the petitioner approached this Court previously in an application under Section 438, Cr.P.C. and, as stated earlier, this Court favoured the petitioner with an order under the said Section, but for a period of two months from the date of passing of the said order. There is a change circumstance as found from the records that now the Vigilance has sought for sanction for lodging the prosecution. It can, therefore, be safely held that the Investigating Agency having sought for sanctionb to lodge the prosecution, the same definitely creates sufficient apprehension in the mind of the petitioner, or his arrest. Moreso, when the period for which the order of anticipatory bail was previously granted has passed long since. This Court is therefore of the view that the present petition is maintainable.

11. With regard to the question as to whether the petitioner should be granted anticipatory bail or not, taking the facts to be considered by the Court for granting such an order as prescribed under Section 438, Cr.P.C. into consideration and further considering the previous order passed by this Court, it would be seen that all such facts to be considered as per Section 438, Cr.P.C. were taken into consideration by this Court in its previous order before coming to the conclusion that the petitioner is entitled to an order of anticipatory bail. All the above contingencies are still existing and the apprehension is more fortified at the preset stage when sanction has been sought for to lodge the prosecution.

12. No doubt, the ratio of the other decisions of the Supreme Court cited by Mr. D. K. Mohapatra, is that the Court should not lightly deal with the economic offenders while considering the question of grant of anticipatory bail in the case of Enforcement officer, Ted. Bombay {supra), the offence alleged was committed under FERA. In the case of Narinderjit Singh Sahni and another (supra), the question before the Supreme Court was the right of an accused to get an order of anticipatory bail under Section 438, Cr.P.C. vis-a-vis his fundamental rights under Article 21 of the Constitution. The facts of the said cases being entirely different from the present case, the conclusions arrived at by the Supreme Court in the said decisions cannot, ipso facto, cannot be applied to the facts of the present case.

13. In view of the above, coupled with the fact that it has already been adjudicated upon by this Court that the facts to be considered under Section 438, Cr.P.C. by the Court were satisfied when the petitioner was granted anticipatory bail by this Court in the previous application. I find no reason to withhold such a relief to the petitioner in the present case, as I have already found that in the facts of the present case, the second petition for anticipatory bail can be maintained.

14. I, therefore, direct that in the event of arrest of the petitioner in connection with Balasore Vigilance P.S. Case No. 35 of 2005 corresponding to Vigilance G.R. Case No. 35 of 2005, he shall be released on bail of Rs. 30,000/- (Rupees thirty thousand) with two sureties each for the like amount to the satisfaction of the arresting officer subject to the condition that he shall appear before the Court below when process is issued by the Court below, if cognizance is taken of the offences after filing of charge sheet and shall move for bail before the Court below, which is filed, shall be dealt with in accordance with law. This order is granted subject to the further condition that the petitioner shall not make any attempt to tamper with the prosecution evidence. This order shall remain in force till submission of final form by the Investigating Agency.

15. The BLAPL is disposed of.

16. Urgent certified copy of this order be granted on proper application.