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TMI Blog1984 (3) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... entioned his name in column No. 2 of the challan papers which were submitted to the Court Under Section 193 of the Code. On 2nd Feb. 1983, Ajit Singh respondent filed a complaint Under Section 302/34, Penal Code, and arrayed Puran Singh petitioner as one of the accused. The Judicial Magistrate 1st Class, Batala, after recording preliminary evidence in support of the averments made in the complaint decided to summon the petitioner through non-bailable warrant. The petitioner approached the Additional Sessions Judge, Gurdaspur, for anticipatory bail but the latter declined it in view of the observations made by this Court in Ram Lal v. State of Punjab 1976 Chand LR (Cri) 388 wherein it is ruled that even in cases where a Magistrate chooses to summon the accused on a complaint through bailable warrant the question of the Sessions Court or the High Court granting anticipatory bail does not arise as the Magistrate concerned has already applied His mind and issued bailable warrant . This order of the learned Additional Sessions Judge necessitated for petitioner to approach this Court for anticipatory bail. 3. At the time of hearing the primary contention raised before the learned Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the above-noted judgments, i.e., in Ram Lal (1976 Chand LR (Cri) 388) (Punj Har) and Balwant Singh cases (supra) and maintains that it is open to this Court as well as the Sessions Court to grant anticipatory bail on merits even in cases where bailable or non-bailable warrants have been issued by the Magistrate Under Section 204 of the Cr.P.C. and provisions of Sub-section (3) of Section 438, Cr.P.C. are only attracted when the accused sought to be summoned by the Magistrate Under Section 204, Cr.P.C., has already been granted anticipatory bail by the High Court or the court of Session. Having given our thoughtful consideration to the entire matter in the light of the submissions of both the learned Counsel, we find merit in the submissions of the learned Advocate-General. 5. It is not a matter of dispute that Section 204, Cr.P.C., is the only section which authorises a Magistrate to issue process to an accused whether he takes cognizance on a private complaint or on a police report or on any other information. As per this section, though a summons is to be issued in a summons case and a warrant in a warrant case yet there are two exceptions to this section. Firstly, in cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed through bailable warrants on a complaint made against them Under Section 302/34 Penal Code had secured anticipatory bail Under Section 438(1), Cr.P.C. One of the considerations which prevailed with the Sessions Judge for the grant of anticipatory bail was that in case the applicants before him. were not granted bail by him they were bound to be committed in custody to the Court of Session Under Section 209, Cr.P.C. He, thus thought it proper to exercise jurisdiction Under Section 438, Cr.P.C. It was this order of the Sessions Judge which was the subject-matter of challenge in this Court. The primary argument raised before the learned single Judge against that order was that an order Under Section 438, Cr.P.C. can be passed till the time any order of bail is not issued by the Magistrate. While accepting this argument, the learned Judge after a reference to the provisions of Section 438 (1) and (3) observed as follows : A perusal of these provisions shows that the High Court or the Court of Session has been empowered to grant bail to the accused in the event of his arrest under Sub-section (1) if he apprehends that he may be arrested for having committed a non-bailable off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person accused of the commission of a non-bailable offence. The section makes no distinction whether the arrest is apprehended at the hands of the police or at the instance of the Magistrate. The.issuance of a warrant by the Magistrate against a person, to my mind, justifiably gives rise to such an apprehension and well entitles a person to make a prayer for his anticipatory bail. The High Court or the Court of Session may, however, decline to exercise its powers Under Section 438(1), Cr.P.C., keeping in view the fact that the Magistrate has summoned the accused through bailable warrant - i.e., a relief almost similar to what can be granted by the Court Under Section 438(1), Cr.P.C. yet that does not mean that the Court has no jurisdiction to grant anticipatory bail to such an accused person. The grant of bail Under Section 438(1) by the High Court or the Court of Session is, to my mind, dependent on the merits of a particular case and not the order of the Magistrate choosing to summon an accused through bailable or non-bailable warrant. The order of the Sessions Judge in Ram Lai's case (1976 Chand LR (Cri) 388) (Punj Har) (supra) well might have been set aside on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X
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