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TMI Blog1994 (9) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... after, the first informant filed a private complaint before the Court concerned alleging that he had laid information with the police against seven persons, but information was recorded only against two persons and this was done so to help the other persons to escape the process of law. The complaint was. therefore, directed against the remaining five persons. The learned Magistrate recorded the sworn statement of the complainant and the statement of other witnesses produced, took cognizance and directed issue of non-bailable warrant against the five accused under Section 204, of the Code of Criminal procedure, 1973 (for short 'the Code ). Thereafter, two among the five accused have filed the present application under' Section 438, Cr PC. 3. Learned Additional Advocate General appearing for the State contended that an order of anticipatory bail under Section 438, Cr. P.C. can be passed only as long as the competent criminal Court has not taken cognizance or issued process and once the Court has done so, there is no jurisdiction surviving under Section 438 of the Code. He places reliance on a decision of a learned Single Judge of the Rajasthan High Court in Rawat Dan v. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh (1985 Cri LJ 897). In that case, chargesheet was filed against the accused named in the F.I.R. after exonerating one of them. A private complaint was filed against the excluded person and the Magistrate ultimately issued non-bailable warrant. The Sessions Court rejected an application moved under Section 438. Cr. P. C. on the ground that it was not maintainable. A similar application was filed in the High Court and the Division Bench considered the matter though the trial was almost over, since the question had been referred by a learned Single Judge. A learned Single Judge of the Punjab and Haryana High Court had taken a view against the maintainability of such an application in Ramlal v. State of Punjab. 1976 Chand LR (Cri.) 388. The Division Bench held that jurisdiction under Section 438 is not dependent on whether the Magistrate acting under Section 204 has issued bailable or non-bailable warrant, that the arrest may be at the instance of the police or at the instance of the Magistrate who has issued the warrant and in either case it may give rise to an apprehension in the mind of the accused that he may be arrested, and such apprehensions, if it arises in relation to a n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge. Section 209 deals with commitment of case to Court of Session when offence is triable exclusively by it, when a case is instituted on a police report or otherwise and the accused has appeared before the Magistrate, and if it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, the Magistrate shall after complying with the provisions of Sections 207 and 208, as the case may be commit the case to the Court of Sessions. Subject to the provisions of the Code relating to bail he shall remand the accused to custody until such committal has been made. Subject to the provisions of the Code relating to bail, he may also remand the accused into custody during and until conclusion of the trial. In Kewal Krishan v. Suraj Bhan. the Court observed: If the committing Magistrate thinks that it is not necessary to commit the accused who may be on bail to custody he may not cancel the bail. This has been made clear by the words subject to the provisions of this Code relating to bail' occurring in Clause (b) of Section 209. Therefore, if the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the provision and lays down in what manner the order allowing anticipatory bail is to be implemented. If the person is arrested without warrant by an Officer-in-charge of a police station on the accusation in respect of which the order has been passed and if he is prepapared to furnish bail, he shall be released on bail. If subsequent to the order, the Magistrate taking cognizance of the offence decides that a warrant should be issued in the first instance against that person, a bailable warrant shall be issued in conformity with the direction of the Court under Sub-section (1). The effect of Section 71 is the same as the effect of an order passed under Section 438(1) and the effectuation of this order is explained in the later part of Sub-section (3) of Section 438. The Code of Criminal Procedure, 1898 did not contain specific provisions analogous to the provisions of Section 438. There was difference of opinion among various High Courts as to whether Courts have inherent power to grant bail in anticipation of arrest. The Law Commission of India recommended the incorporation of a provision enabling High Courts and Sessions Courts to grant anticipatory bail, having regard to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the material is such that he satisfied that there is sufficient ground for proceeding he is bound to lake cognizance and issue process. This may happen even if the story put forth by the complainant is more imaginary than real or may be hopelessly exaggerated. Such a situation may arise at the stage of committal where the Magistrate is concerned only with one aspect, namely, whether the material disclosed commission of the offence exclusively triable by the Court of Session. At neither stage is he required to go into the truth or otherwise of the material before him. It cannot, therefore, be said that at such stages the justification for invocation of Section 438 Cr. P.C. no longer exists. In this view, the scope of Section 438 should not be restricted by reading into it words to the effect- when any person has reason to believe that he may be arrested solely at the instance of the police and not as per warrant issued by a competent Magistrate. The clear purpose underlying the language employed by the legislature preclude any justification for reading such words into the statute. 13. It has been strenuously argued the that second part of Sub-section (3) of Section 438 would w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bailable warrant of arrest by a Magistrate the duty of the police officer entrusted with execution of the warrant would be to arrest the person and produce him before the Magistrate who thereupon shall deal with the accused as required by the order of anticipatory bail. 15. In view of what we have indicated above, we are in respectful agreement with the view taken by the High Court of Punjab and Haryana that an application under Section 438 Cr. P.C. would be maintainable even after the Magistrate issued process under Section 204 or at the stage of committal of the case to the Sessions Court or even at a subsequent stage, if circumstances justify the invo cation of the provision. This is not to say that the jurisdiction under Section 438 of the Code is to be freely exercised without reference to the nature and gravity of the offence alleged, the possible sentence which may be ultimately imposed, the possibility of interference with the investigation or the witnesses and public interest. With great respect, we are unable to agree with the view taken by the High Court of Rajasthan. 16. The next question for consideration is whether on an application under Section 438 of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X
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