1984 (3) TMI 440 - HC - Indian Laws

Summary

Issues Involved:
1. Mandatory issuance of bailable warrant by a Magistrate when taking cognizance of a non-bailable offense.
2. Jurisdiction of the High Court or Sessions Court to grant anticipatory bail after a Magistrate has issued a warrant.

Issue-wise Detailed Analysis:

1. Mandatory Issuance of Bailable Warrant by a Magistrate:

The primary issue addressed is whether a Magistrate must issue a bailable warrant when taking cognizance of a non-bailable offense on a complaint, regardless of whether the accused has obtained anticipatory bail under Section 438 of the Cr.P.C. The Court examined the provisions of Section 438(3) of the Cr.P.C., which consists of two parts. The relevant part states that if a Magistrate taking cognizance of such offense decides that a warrant should issue in the first instance, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-section (1). This provision mandates that the Magistrate issue a bailable warrant irrespective of the nature of the offense. The Court, however, disagreed with the view that the Magistrate is mandatorily obliged to issue a bailable warrant in the first instance if the accused has not been granted anticipatory bail. The Court clarified that the discretion vested in a Magistrate under Section 204 of the Cr.P.C. is not hedged by Sub-section (3) of Section 438 unless the accused has already obtained anticipatory bail. Therefore, the Court overruled the observations made in Balwant Singh's case, which mandated the issuance of bailable warrants irrespective of the nature of the offense.

2. Jurisdiction of the High Court or Sessions Court to Grant Anticipatory Bail:

The second issue pertains to whether the High Court or Sessions Court can grant anticipatory bail after a Magistrate has issued a warrant. The Court examined the decision in Ram Lal's case, which concluded that the jurisdiction to grant anticipatory bail under Section 438(1) of the Cr.P.C. ceases once a Magistrate issues a warrant. The Court found this conclusion difficult to sustain. It clarified that the primary factor for exercising jurisdiction under Section 438 is the apprehension of arrest by a person accused of a non-bailable offense, regardless of whether the arrest is apprehended at the hands of the police or the Magistrate. The issuance of a warrant by the Magistrate gives rise to such apprehension and entitles the person to seek anticipatory bail. The Court emphasized that the grant of anticipatory bail is dependent on the merits of the case and not on the Magistrate's order to summon the accused through a bailable or non-bailable warrant. Consequently, the Court overruled the decision in Ram Lal's case, which restricted the jurisdiction to grant anticipatory bail after the issuance of a warrant by the Magistrate.

Conclusion:

The Court concluded that the mandatory issuance of bailable warrants by a Magistrate under Section 438(3) of the Cr.P.C. does not apply if the accused has not obtained anticipatory bail. Additionally, the High Court or Sessions Court retains the jurisdiction to grant anticipatory bail even after a Magistrate has issued a warrant, based on the merits of the case. The petition was dismissed as infructuous.