Himachal Pradesh High Court

Reeta Jha vs State Of Himachal Pradesh And Another on 26 February, 2024

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP (M) No. 3233 of 2023

.
Reserved on: 29.12.2023

Date of Decision: 26.02.2024.

Reeta Jha ...Petitioner

Versus

State of Himachal Pradesh and another

Coram
r to ...Respondents

Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.

For the Petitioner : Mr. Vivek Singh Attri, Advocate.

For the Respondents : Mr. Jitender Sharma, Additional
Advocate General.

Rakesh Kainthla, Judge

The petitioner has filed the present petition to seek

pre-arrest/transit bail in complaint case No. 1038(C) of 2023, for

the commission of offences punishable under Sections 498-A,

323, 504, and 328 read with Section 34 of the Indian Penal Code

and Sections 3 and 4 of the Prohibition of Dowry Act, 1961. It has

been asserted that the petitioner was falsely implicated at the

1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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instance of her daughter-in-law Smt. Shivangini alias Sakshi.

Akash Jha, elder son of the petitioner, got married to the

.
complainant Smt. Shivangini alias Sakshi on 21.2.2019 as per

Hindu Rites and Customs. She filed a complaint against the

petitioner, petitioner's two sons and her husband. The

complaint was registered as complaint case No. 1038(C) of 2021

in the Court of learned Sub Divisional Judicial Magistrate. The

petitioner was granted pre-arrest bail by learned Additional

Sessions Judge, Patna on 24.11.2022. Her husband and her

younger son were also granted pre-arrest bail by learned

Additional Sessions Judge-I, Patna on 16.11.2021. The husband of

the complainant was also granted pre-arrest bail by Patna High

Court on 19.5.2023. Section 328 of IPC was added subsequently,

which offence is exclusively triable by the Court of Sessions.

Learned Sub Divisional Judicial Magistrate committed the

complaint to learned Sessions Judge and it was registered as

Sessions Trial Case No. 992 of 2023. Learned Additional Sessions

Judge-X, Patna issued non-bailable warrants of arrest against

the accused on the first date of hearing. An application for

recalling of order was filed, which was wrongly dismissed by the

learned Additional Sessions Judge. The petitioner is

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apprehending her arrest. The petitioner is a Principal at Tagore

Vanasthali Public School, Kasauli, Solan, H.P. She is residing

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separately from her son and the complainant in connection with

her job. The petitioner will have to face humiliation in society in

case of her arrest. She is ready and willing to appear before the

learned Trial Court but is apprehending her arrest due to the

issuance of non-bailable warrants of arrest. Hence, the pre-

arrest transit bail has been sought by the petitioner.

2. I have heard Mr. Vivek Singh Attri, learned counsel

for the petitioner and Mr. Jitender Sharma, learned Additional

Advocate General for the respondent-State.

3. Mr. Vivek Singh Attri, learned counsel for the

petitioner relied upon the judgment of the Hon'ble Supreme

Court in Priya Indoria Vs. State of Karnataka and others 2023 SCC

OnLine SC 1484 to submit that the Court has jurisdiction to grant

pre-arrest bail even if the arrest is sought by the authorities

located in a different State to enable the petitioner to approach

the authority to seek the regular bail. He has also relied upon the

following case law:

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(i) Saravjeet Singh Vs. State of H.P., Cr.MP(M) No. 493 of
2020, decided on 17.3.2020;

.
(ii) Sennasi and another Vs. State Rep. by Inspector of

Police, 1997 (2) CTC 665;

(iii) Nikita Jacob Vs. The State of Maharashtra,

Anticipatory Bail Application No. 441 of 2021, decided
on 17.2.2021;

(iv) Kewal Chamanlal Sharma Vs. The State of
Maharashtra and Anr., Criminal Anticipatory Bail
Application ST No. 3041 of 2020, decided on

10.12.2020;

(v) Sasi Madathil Vs. State of NCT of Delhi, Bail
Application No. 3942 of 2021, decided on 3.11.2021;

(vi) Ameet Khandewal Vs. State of NCT of Delhi, 2021 SCC
OnLine Del 2527: 2021 Cri LJ 2638;

(vii) Daler Singh Vs. State of NCT of Delhi and Anr. 2003

SCC Online Del 983: (2004) 72 DRJ 465;

(viii) Sushil Kumar Bhati & Anr. Vs. State & Anr. 2016 SCC

OnLine Del 6370 ; (2017) 1 DLT (Cri) 452;

(ix) Ramaben Govindbhai Pansuriya Vs. State of Gujarat,
R/Cr. Misc. Application No. 5457 of 2019;

(x) Ajay Agarwal Vs. State of U.P., Cr. Misc. Anticipatory
Bail Application No. 1669 of 2022;

(xi) Mahesh Kumar Sharma Vs. State of Rajasthan, 2006
(1) ALD Cri 52;

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(xii) Arnesh Kumar Vs. State of Bihar and Anr. SLP (Crl.)
No. 9127 of 2013;

.
(xiii) Aakash Jha and another Vs. State of Sikkim, Criminal

Misc. Bail No. 59 of 2023; and

(xiv) Aakash Jha and others Vs. State of Bihar, Anticipatory

Bail Application No. 5730 of 2022.

4. Mr. Jitender Sharma, learned Additional Advocate

General submitted that the pre-arrest bail cannot be granted

when a competent Court has issued a non-bailable warrants of

arrest as it would amount to usurping the jurisdiction of a

competent Court. Therefore, he prayed that the present petition

be dismissed.

5. I have given considerable thought to the submissions

at the bar and have gone through the records carefully.

6. It was laid down by the Hon'ble Supreme Court in

Priya Indoria v. State of Karnataka, 2023 SCC OnLine SC 1484 that

the High Court or the Court of Sessions can grant limited

anticipatory bail in the form of an interim protection under

Section 438 of Cr.PC in the interest of justice with respect to an

FIR registered outside the territorial jurisdiction of the Court. It

was observed:-

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93. In view of what we have discussed above, we are of the
view that considering the constitutional imperative of
protecting a citizen's right to life, personal liberty and

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dignity, the High Court or the Court of Session could

grant limited anticipatory bail in the form of an interim
protection under Section 438 of CrPC in the interest of
justice with respect to an FIR registered outside the

territorial jurisdiction of the said Court, and subject to the
following conditions:
(i) Prior to passing an order of limited anticipatory
bail, the investigating officer and public prosecutor

who are seized of the FIR shall be issued notice on
the first date of the hearing, though the Court in an
appropriate case would have the discretion to grant
interim anticipatory bail.

(ii) The order of grant of limited anticipatory bail

must record reasons as to why the applicant
apprehends an inter-state arrest and the impact of
such grant of limited anticipatory bail or interim

protection, as the case may be, on the status of the
investigation.
(iii) The jurisdiction in which the cognizance of the

offence has been taken does not exclude the said
offence from the scope of anticipatory bail by way

of a State Amendment to Section 438 of CrPC.
(iv) The applicant for anticipatory bail must satisfy

the Court regarding his inability to seek
anticipatory bail from the Court which has the
territorial jurisdiction to take cognizance of the
offence. The grounds raised by the applicant may be
a. a reasonable and immediate threat to life,
personal liberty and bodily harm in the
jurisdiction where the FIR is registered;
b. the apprehension of violation of the right to
liberty or impediments owing to arbitrariness;

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c. the medical status/disability of the person
seeking extra-territorial limited anticipatory
bail.

.
94. It would be impossible to fully account for all exigent

circumstances in which an order of extraterritorial
anticipatory bail may be imminently essential to
safeguard the fundamental rights of the applicant. We

reiterate that such power to grant extra-territorial
anticipatory bail should be exercised in exceptional and
compelling circumstances only which means where
denying transit anticipatory bail or interim protection to

enable the applicant to make an application under
Section 438 of CrPC before a Court of competent
jurisdiction would cause irremediable and irreversible
prejudice to the applicant. The Court, while considering

such an application for extra-territorial anticipatory bail,

in case it deems fit may grant interim protection instead
for a fixed period and direct the applicant to make an
application before a Court of competent jurisdiction.

7. This Court had also granted transitory interim

protection in Saravjeet Singh's case (supra). Therefore, the Court

has jurisdiction to grant transit interim bail even if the case has

been registered outside the territorial jurisdiction of this Court

provided that the petitioner is residing within the jurisdiction of

the Court and has a reasonable apprehension of his/her arrest

within the jurisdiction of this Court. In the present case, the

petitioner is serving as a Principal at Tagore Vanasthali Public

School, Kasauli, Solan, H.P. within the jurisdiction of this Court;

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therefore, this Court has the jurisdiction to grant interim transit

bail to the petitioner.

8. It was submitted by Mr. Jitender Sharma, learned

Additional Advocate General for the respondent-State that the

jurisdiction under Section 438 of Cr.PC cannot be exercised

where the non-bailable warrants of arrest have been issued by a

competent Court of law. The question "whether the Court can

exercise the jurisdiction under Section 438 of Cr.PC after the

issuance of non-bailable warrants of arrest by the competent

Court" has engaged the attention of various Courts from time to

time. A Full Bench of Andhra Pradesh High Court held in Sheik

Khasim Bi v. State, 1986 SCC OnLine AP 161, 1986 Cri LJ 1303 that

there may be justifiable grounds to grant anticipatory bail to a

person who apprehends arrest and against whom a warrant of

arrest is pending. In such a situation, the officer arresting the

accused will take him to the Magistrate taking cognizance and

issuing the process who shall release him in terms of the pre-

arrest bail granted by the competent Court. It was observed: -

"15. It can, therefore, be seen that sub-sec. (3) of S. 438,
Cr. P.C. does not in any manner restrict the power of the
court to grant anticipatory bail, but on the other hand, it
only contains the procedural aspect that is necessary to

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give effect to the order of anticipatory bail passed under
sub-sec. (1) of S. 438 and the manner in which it would be
given effect to. Maybe the High Court or the Court of

.
Session (would) not (be) inclined to grant bail keeping in

view the fact that the Magistrate has taken cognizance
and issued process, but the mere non-exercise of such
power does not mean lack of jurisdiction.

16. Even in a case where cognizance is taken there may be
justifiable grounds to grant anticipatory bail to a person
who apprehends arrest and against whom a warrant of
arrest is pending.

17. The learned Public Prosecutor however laying stress
on the words "reason to believe" submitted that when
once the charge sheet is filed and a warrant is issued, that

means the matter has reached a stage that arrest is a
certainty and there is no question of the person still

having only "reason to believe". We are unable to read the
words in the manner the learned Public Prosecutor
intends to. The words "reason to believe" have been used

in a wider sense.
18. In Gurbaksh Singh's case, (1980) 2 SCC 565: AIR 1980 SC
1632 : (1980 Cri LJ 1125) supra it is observed as follows:--

"The applicant must show that he has 'reason to

believe' that he may be arrested for a non-bailable
offence. The use of the expression "reason to believe"
shows that the belief that the applicant may be so

arrested must be founded on reasonable grounds.
Mere 'fear' is not 'belief' for which reason it is not
enough for the applicant to show that he has some sort
of a vague apprehension that someone is going to
make an accusation against him, in pursuance of
which he may be arrested. The grounds on which the
belief of the applicant is based that he may be arrested
for a non-bailable offence must be capable of being
examined by the court objectively because it is then
alone that the court can determine whether the
applicant has reason to believe that he may be so

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arrested. S. 438(1), therefore, cannot be invoked on the
basis of vague and general allegations, as if to arm
oneself in perpetuity against a possible arrest

.
Otherwise, the number of applications for anticipatory

bail will be as large as, at any rate, the adult populace".
19. Filing of a charge sheet and issuance of a warrant are
certainly the grounds which make the person not only to

believe that he would be arrested but also to move the
courts under S. 438(1).
20. One other aspect which is highlighted by the learned
Public Prosecutor is that if anticipatory bail under S.

438(1) Cr. P.C. is granted in a case where cognizance is
already taken and a warrant is issued, then, the officer
arresting will be in a predicament and he may also be

guilty of contempt of court if he does not execute the
warrant issued by the Magistrate and since there is no

provision under S. 438 Cr. P.C. for such a situation it must
be presumed that the powers under S. 438 Cr. P.C. come to
an end after the Magistrate takes cognizance and issues

the process. We see no force in this submission. Even in a
case where anticipatory bail is granted before the
Magistrate takes cognizance, the accused has to be

arrested and released, and sub-sec. (3) of S. 438 provides
for the same. Likewise, in a case where cognizance is

taken and process is issued, if the Court grants
anticipatory bail under S. 438(1) the police officer shall
execute the process, viz., the warrant, by arresting the

accused and produce him before the Magistrate who shall
release him on bail pursuant to the orders of anticipatory
bail granted by the High Court or the Court of Session.
There may also be cases where anticipatory bail is granted
under S. 438(1) without knowing that cognizance has
been taken and the process has been issued, but that does
not mean the order passed by the superior court under a
statutory provision becomes redundant we are aware that
S. 70 Cr. P.C. lays down that every warrant of arrest issued
by a court under the Cr. P.C. shall remain in force until it
is cancelled by the court which issued it, or until it is

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executed. In such a situation also in cases of arrest
pursuant to the warrant, the order under S. 438(1) has to
be obeyed and can be given effect to by following the

.
necessary procedure in the matters of releasing the

persons on bail. However, this difficulty does not arise
even in a case where cognizance is taken because the
court will have knowledge about the fact that the

Magistrate has taken cognizance. Therefore, even in such
a case if the court intends to grant anticipatory bail, it can
lay down the necessary conditions and directions which
are generally given while releasing a person under S. 437

or S. 439. In Gurbaksh Singh's case, (1980) 2 SCC 565: AIR
1980 SC 1632 : (1980 Cri LJ 1125) supra the Supreme Court
in para 26 observed thus:--
"We find a great deal of substance in Mr. Tarkunde's

submission that since denial of bail amounts to

deprivation of personal liberty, the court should lean
against the imposition of unnecessary restrictions on
the scope of S. 438 especially when no such
restrictions have been imposed by the legislature in

the terms of that section. S. 438 is a procedural
provision which is concerned with the personal liberty
of the individual, who is entitled to the benefit of the

presumption of innocence since he is not, on the date
of his application for anticipatory bail, convicted of the

offence in respect of which he seeks bail. An over-
generous infusion of constraints and conditions which

are not to be found in S. 438 can make its provisions
constitutionally vulnerable since the right to personal
freedom cannot be made to depend on compliance
with unreasonable restrictions. The beneficent
provision contained in S. 438 must be saved, not
jettisoned".
23. Similar modalities can also be applied in the case of
granting of anticipatory bail under S. 438(1) even in a case
where the criminal court takes cognizance and issues the
warrant, depending upon the circumstances. A notice to
the Public Prosecutor can be issued after the application

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is filed, and after hearing both sides the court will have
the necessary information, particularly regarding the fact
of the charge sheet having been filed and the warrant

.
having been issued, and if the High Court or the Sessions

Court is satisfied that there are certain exceptional
circumstances, then it may in its discretion, instead of
directing the applicant to obtain bail under S. 437 or S.

439 Cr. P.C. grant anticipatory bail under S. 438 Cr. P.C.
with suitable directions and impose necessary conditions.
Of course, as pointed out by the Supreme Court
in Gurbaksh Singh's case, (1980) 2 SCC 565: AIR 1980 SC

1632 : (1980 Cri LJ 1125) supra, it is purely within the
discretion of the court, but the fact that the charge-sheet
is filed and a warrant is issued, is yet another strong
circumstance which the court should keep in view while

exercising this extraordinary power. However, the non-

exercise of this extraordinary power ordinarily is not due
to lack of jurisdiction.
24. The discretion to exercise such power is always there,
but it always depends upon various facts and

circumstances of each case.
25. For all the aforesaid reasons we hold that the filing of

a charge sheet by the police and issuing of a warrant by
the Magistrate does not put an end to the power to grant

bail under S. 438(1) Cr. P.C. and on the other hand we are
of the view that the High Court or the Court of Session has
power to grant anticipatory bail under S. 438(1) to a

person after the criminal court has taken cognizance of
the case and has issued process viz., the warrant of arrest
of that accused person. Therefore, the decision of the
Division Bench in Kamalakara Rao's case, (1983) 1 APLJ 97 :
(1983 Cri LJ 872) supra, upholding the view taken by
Madhusudhan Rao, J., in N. Dasaratha Reddy's case, (1975)
2 APLJ (HC) 214 supra, and by Ramachandra Raju, J., in Crl.
M.P. 884 of 1981 does not lay down the correct legal
position and consequently, all these rulings are overruled.

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9. A Full Bench of Madhya Pradesh High Court also held

in Nirbhay Singh v. State of Madhya Pradesh, 1994 SCC OnLine MP

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206: 1995 Cri LJ 3317 that there is nothing in Section 438 of Cr.PC

to confine its operation to arrests made by the police and to hold

that this Section will not apply to the arrest made by the police

on a warrant issued by the Court. It was observed: -

"11. Section 438 speaks of a person having reason to
believe that he may be arrested on an 'accusation'. There
may be an accusation even before a case is registered by

police. After the registration of the case, filing of the
charge sheet or filing of the complaint taking cognizance

or issuance of a warrant, the accusation will not cease to
be an accusation. At the later stage, there may be a
stronger accusation or more evidence. Nevertheless, the

accusation survives or continues. Section 438 speaks of
apprehension and belief that he may be 'arrested'. There
is no limitation in the language employed by the

legislature indicating that the arrest contemplated is an
arrest by the police of their own accord or that an arrest

by the police on a warrant issued by the Court will not
attract section 438. The language used is clear and
unambiguous, namely, apprehension of "arrest on an

accusation." Considering the legislative purpose
underlying the provision and the clarity of the language
used in the section, we do not find any justification to
import anything extraneous into the interpretation so as
to restrict the scope or vitality of the provision. It is not as
if circumstances justifying an application under section
438 would disappear once a Magistrate takes cognizance
of the offence or even after he passes an order
committing the case to the Sessions Court. Even at such
stages, there may be circumstances warranting the
invocation of the special jurisdiction under section 438. A

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person may file a private complaint and produce before
the Magistrate a few witnesses who will provide a
consistent version of an imaginary occurrence. At that

.
stage, the Magistrate will not be in a position to

appreciate the evidence or go behind the same. If the
material is such that he is satisfied that there is sufficient
ground for proceeding he is bound to take 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 is 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 of, the Criminal
Procedure Code no longer exists. In this view, the scope of
section 438 should not be restricted by reading into its
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 precludes any justification
for reading such words into the statute.

12-13. It has been strenuously argued that the second part
of sub-section (3) of section 438 would warrant a

restricted interpretation being given to sub-section (1).
The second part states that if a Magistrate takes
cognizance of an offence, and decides to issue a warrant,
he shall issue a bailable warrant in conformity with the
order of anticipatory bail. This provision is unambiguous
indicating how in the face of an order passed under sub-
section (1) a Magistrate should exercise his jurisdiction
under section 204. He is precluded from issuing a non-
bailable warrant since that may cause embarrassment to
the police officer entrusted with the duty of executing the
warrant. Even without this provision, a Magistrate can be

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expected only to issue a non-bailable warrant even after
coming to know of an order of anticipatory bail passed by
the High Court or Sessions Court. Of course, he may not

.
be aware of the fact that an order of anticipatory bail has

been passed. Such cases will have to be treated at par with
the instances of non-bailable warrants issued prior to the
passing of an order under section 438(1). In such cases, a

pragmatic view should be taken and conflict avoided. A
reading of paragraph 39 of the decision in Gurbaksh
Singh's case would be instructive. The Supreme Court
referred to orders passed in an appeal against orders of

the High Court granting anticipatory bail imposing
conditions. The Supreme Court in those cases directed the
person concerned to surrender to the police for a brief
period if a discovery is to be made under section 27 of the

Evidence Act or that he should be deemed to have

surrendered himself if such a discovery is to be made. In
exceptional cases, the Court directed that the order of
anticipatory bail will remain in operation only for a few
days until the filing of the F.I.R. in respect of matters

covered by the order. After referring to these orders, the
Court observed -- "these orders, on the whole, have
worked satisfactorily, causing the least inconvenience to

the individuals concerned and least interference with the
investigational rights of the police".

14. In our opinion, the conflict between an order of
anticipatory bail and a non-bailable warrant has to be

met in a pragmatic manner striking a balance between an
individual's right to personal freedom and the invocation
of the right of the police and the procedure required to be
followed by a Magistrate. Where an order of anticipatory
bail is passed after the issue of a non-bailable warrant of
arrest by a Magistrate, the duty of the police officer
entrusted with the 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.

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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, Criminal Procedure Code 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 invocation 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."

10. A Division Bench of Madhya Pradesh High Court

examined this judgment in Yogendra Singh v. State, 1999 SCC

OnLine MP 589 and held that the privilege of anticipatory bail

cannot be extended to a person who has violated terms and

conditions of bail. Speaking through Hon'ble Mr Justice Dipak

Misra (J) (as His Lordship then was), it was held as under:-

"The accused persons were released on bail. They
appeared in the Court and as per the conditions in the bail
bond they were required to appear before the Court which
was in seisin of the matter. In this context, I may
profitably refer to Section 441 of the Code, which reads as
under:
"441. (1) Before any person is released on bail or
released on his own bond, a bond for such sum of
money as the police officer or court, as the case may
be, thinks sufficient shall be executed by such person,

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and when he is released on bail, by one or more
sufficient sureties conditions that such person shall
attend at the time and place mentioned in the bond,

.
and shall continue so to attend until otherwise

directed by the police officer or Court, as the case may
be.
(2) Where any condition is imposed for the release of

any person on bail, the bond shall also contain that
condition.
(3) If the case so requires, the bond shall also bind the
person released on bail to appear when called upon at

the High Court, Court of Session or other Court to
answer the charge.
(4) For the purpose of determining whether the

sureties are fit or sufficient, the Court may accept

affidavits in proof of the facts contained therein
relating to the sufficiency or fitness of the sureties, or,
if it considers necessary, may either hold an inquiry
itself or cause an inquiry to be made by a Magistrate

subordinate to the Court, as to such sufficiency or
fitness."
The aforesaid provision contemplates that an accused is

required to appear before the Court to answer a charge

levelled against him. It is imperative for the accused to do
so. When an order of bail is passed the accused gets back
his liberty from the custody on a condition that he would

be present during trial. He is not totally free. His liberty is
conditional. I am conscious of the fact that the Full Bench
has used the words subsequent stages, but I have already
indicated that the same should be read in the context of
paragraph 11 of the judgment. At this juncture, I may
usefully refer to a decision rendered in the case
of Naiturasu v. State 1998 Cri LJ 1762, wherein a learned
Single Judge of the Madras High Court enumerated stages
when apprehension of arrest arises. It is useful to produce
the same:

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"91. When apprehension of arrest arises? The
apprehension of arrest for a non-bailable offence, one
can have at different stages, namely:

.
(a) during the period of investigation by the

police after registration of FIR and before filing
of the final report under section 173, Cr. P.C.
(b) during further investigation under section

173(8), Cr. P.C. even after filing of the charge-
sheet under Section 173, Cr. P.C.
(c) after taking cognisance by the Magistrate,

summoning the accused under section 204, Cr.
P.C. through warrant;
(d) while the Magistrate committing the
Sessions case to the Court of Session under

Section 209, Cr. P.C. and remanding the accused

to custody;
(e) during the enquiry or trial, if the Court, on
the basis of the evidence let in, impleads a

person as an accused under Section 319 Cr. P.C.
for the purpose of summoning or detaining him
under Section 319(2) and (3), Cr. P.C."

I am in respectful agreement that these are the stages
wherein an accused can apprehend arrest. These would

conceptually engulf subsequent stages' but would not
cover a stage where an accused who has availed the
privilege of anticipatory bail or regular bail fails to appear

before the Court on the dates fixed for trial and in a way
abuses his liberty. The learned Single Judge in the case
of Natturasu (supra) has further held as under"
"92. The above five contingencies involve different
stages. As seen earlier, once the person accused of is
released on anticipatory bail or bail at one stage, the
operation of the bail continues till the conclusion of
the trial. Therefore, the person, who is already on bail
or anticipatory bail, cannot be entitled to apply for a

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19

fresh anticipatory bail in respect of the same
accusation, in other stages.
(93) For instance, if a person, who is already on bail,

.
did not appear before the trial court and, therefore, the

Court issues a warrant of arrest, then the said person
will certainly have the apprehension of arrest.
94. But, in such a situation, the accused is not entitled

to file an application for anticipatory bail, because he
is already on bail or anticipatory bail in respect of the
accusation of a non-bailable offence. He shall, in such
circumstances, have to take steps to recall the warrant.

95. Therefore, the application for anticipatory bail
would not deal with the situation, wherein the accused
had appeared before the Court, in relation to the case

in which he already obtained the bail.

96. In other words, the application under section 438,
Cr. P.C., being dealt with only relates to the
apprehension of arrest for the accusation of non-
bailable offence only one."

I have quoted in extenso from the aforesaid decision, as I
am in respectful agreement in the law laid down therein. I

may hasten to add that emphasis has to be given not only
on stage but also on self-same accusation. To elaborate if

initially the accused is being sought to be arrested for an
offence punishable u/s. 326 of IPC and has been granted
anticipatory bail but later on, section 307 of IPC is added

and the Magistrate issues summons to him and he has an
apprehension that he may be arrested once he surrenders
before the Court an application u/s. 438 of the Code at his
instance may stand in a different footing but supposing
an accused who has been granted benefit of anticipatory
bail after a warrant of arrest has been issued u/s. 319 of
the Code and he after availing the privilege and obtaining
the concession of bail does not appear during the trial and
jumps bail and the Court issues a non-bailable warrant of
arrest for his production, in that case, the apprehension
may ensue but that will not give him right to approach the

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Court for grant of anticipatory for the simple reason, at
his behest an application for anticipatory bail would not
lie. The concept of 'Ex paritaterationis' will not be

.
attracted inasmuch as the first limb, the apprehension' of

arrest exists, but the second limb 'self-same accusation'
is not amputated. No accused should forget the basic
principle that he who seeks liberty must conduct himself

with propriety as liberty blossoms in an atmosphere of
composite restraint and collective good. Section 438 of
the Code cannot be given an interpretation to guillotine
other provisions of the Code. It is hereby made clear that

it would be open to him to take appropriate steps under
Section 70(2) of the Code for recall/cancellation of the
warrant so issued against him or, he may, if he so
chooses, assail the order issuing warrant as illegal or

improper by preferring appropriate application before the

higher courts, wherein the propriety of issuance of
warrant may be gone into. The justifiability or the
defensibility of the order would be a matter of scrutiny by
the Court exercising power and that is a different arena

altogether.
Before I part with the case, I may state that the goddess of
liberty is to be worshipped because without liberty there

is no moon, no stars, no light, and no life but he who
intends to have the light must light the candle and look at

the stars with humility so that stars shall reveal
themselves and the moon shall shine. He cannot be

allowed to kick the goddess of liberty and then cry at the
altar for mercy. It should not be forgotten that the
longevity of liberty is dependent upon a healthy mind
which devoutly obeys the law."

11. Orissa High Court also held in Padma Charan Panda v.

S. Ram Mohan Rao, 1987 Cri LJ 923 that where an accused has

been arrested and released on bail under Section 437 and 439 of

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21

Cr.PC, the provision of Section 438 of Cr.PC will not apply to

him. It was observed:-

"7. Section 438 of the Code which was engrafted into the
statute with a particular purpose and not to be made
applicable in all contingencies where the normal Criminal

Courts have already released the accused on bail by
invoking their jurisdiction either under S. 437 or under S.
439. As has been stated by the Supreme Court in some of
the cases to which we will refer later it applies at a stage

prior to arrest when the person apprehends his arrest on
being accused of committing a non-bailable offence. Once
the person concerned is arrested or appears before the
Court and the Court is in seisin over the matter and is

then released on bail, the subsequent apprehension of his

further arrest in the event of the matter being committed
to the Court of Session, will not attract the operation of S.
438 of the Code. The scope and effect of S. 438 of the Code
of Criminal Procedure came up for consideration before

this Court in the case of Mohan Behera v. State, (1985) 59
Cut LJ 110. Our learned brother Justice Behera has
elaborately discussed this matter and has taken into

consideration the Bench decision of the Madhya Pradesh
High Court to which we have already referred and

disagreed with the view expressed by the Madhya Pradesh
High Court held that S. 438 of the Code deals with the

grant of anticipatory bail which means bail in
anticipation of arrest and this section does not take in its
ambit the case of an accused against whom a Court has
already issued process by taking cognizance of the
offence. In the aforesaid Orissa case, our learned brother
has referred the observation of the Supreme Court
in Gurbaksh Singh case reported in (1980) 2 SCC 565: AIR
1980 SC 1632 : (1980 Cri LJ 1125) where the Supreme Court
held:
"...............The distinction between an ordinary order of
bail and an order of anticipatory bail is that whereas

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the former is granted after arrest and therefore means
release from the custody of the police, the latter is
granted in anticipation of arrest and is therefore

.
effective at the very moment of arrest..............."

(Underlining is ours)
8. In our view the aforesaid decision of this Court in the
Mohan Behera case lays down the correct position of law

so far as the stage at which S. 438 of the Code can be made
applicable. The provision of S. 438 came up for
consideration before a Bench of Gauhati High Court
in State of Assam v. Mobarak Ali, 1982 Cri LJ 1816, and it was

held:
"The term "appears" in S. 437 means and includes a
voluntary appearance before the Court without the

intervention of any agency and the act of surrender
before the Court coupled with submission to its

direction. These are implicit in S. 437. As such, when a
person accused of a non-bailable offence voluntarily
appears before the Court and remains in physical

control of the Court and prays for bail, the Magistrate
is empowered to grant bail to him if he is so entitled.
Such a bail not being asked for in apprehension of

arrest, it cannot be said that the Magistrate exercises
the powers under S. 438 which are not vested in him.

The granting of bail by the Magistrate in such
circumstances is well within the scope of S. 437."
9. In another decision of this Court in the case of Sri

Bhramar v. State of Orissa, (1981) 51 Cut LT 391, another
single Judge of this Court also examined the scope of S.
438 and held that the said provision can be attracted only
when the accused is apprehending arrest and does not
take within its sweep the case of an accused against
whom the Criminal Court has already issued process by
taking cognizance of the offence. The Supreme Court also
considered the scope and effect of S. 438 of the Code vis-
a-vis R. 184 of the Defence of India Rules. In Balchand
Jain v. State of Madhya Pradesh, (1976) 4 SCC 572: AIR 1977
SC 366 : (1977 Cri LJ 225), the Supreme Court has held:

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".........Now S. 438 contemplates an application to be
made by a person who apprehends that he may be
arrested on an accusation of having committed a non-

.
bailable offence. It is an application on an apprehension

of arrest that invites the exercise of the power under S.
438. And on such an application, the direction that
may be given under S. 438 is that in the event of his

arrest, the applicant shall be released on bail. Rule 184
on the other hand deals with a different situation and
operates at a subsequent stage when a person is
accused or convicted of contravention of any rule or

order made under the Rules and is in custody. It is only
the release of such a person on bail that is
conditionally prohibited by R. 184. If a person is not in
custody but is merely under an apprehension of arrest

and he applies for a grant of 'anticipatory bail' under

S. 438, his case would clearly be outside the mischief of
R. 184 because when the Court makes an order for
grant of 'anticipatory bail', it would not be directing
the release of a person who is in custody. It is an

application for the release of a person in custody that
is contemplated by R. 184 and not an application for a
grant of 'anticipatory bail' by a person apprehending

arrest. Section 438 and R. 184 thus operate at different
stages, one prior to arrest and the other after arrest

and there is no overlapping between these two
provisions so as to give rise to a conflict between
them..............."

10. The aforesaid observations would equally apply to a
case when an accused is released on bail under S. 437 or
439 of the Code and, therefore, to such a case S. 438
cannot be made applicable again merely because the
accused may be re-arrested or taken into custody on
being committed to the Court of Session. A learned single
Judge of the Rajasthan High Court also considered the
scope and effect of S. 438 in the case of Rewat Dan v. State
of Rajasthan, 1975 Cri LJ 691 (Raj), and held:

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"S. 438 no doubt authorises the High Court and the
Court of Session to grant bail in anticipation of arrest
upon an application made by a person who has reason

.
to believe that he may be arrested, but the High Court

has no power to direct the committing Magistrate that
in the event of committing the case to the Court of
Session if the accused person is not in custody, he shall

take bail from him for appearance before the Court of
Session.
Such a direction if given will amount to taking away
the discretion of power given to him under Cl. (b) of S.

209 of the Code." (Quoted from the head-notes)
11. In our opinion, therefore, an order under S. 438 of the
Criminal Procedure Code can be passed before the arrest

of the applicant. It is the imminent likelihood of arrest,
founded on a reasonable belief on being accused of the

commission of a non-bailable offence which gives the
jurisdiction of the Court of Session and High Court to
grant anticipatory bail under S. 438 of the Code and an

accused can invoke the jurisdiction of the Court under S.
438 so long he has not been arrested. The provisions of S.
438 cannot be invoked after the arrest of the accused

since in such an event the accused must seek his remedy
either under S. 437 or 439 of the Code. In that view of the

matter, an application under S. 438 will not be
maintainable at the stage of the passing of the
commitment order under S. 209 or under the

apprehension that the case may be committed to the
Court of Session. The learned Sessions Judge, therefore,
was in error in invoking his jurisdiction under S. 438 of
the Code since the accused in the present case were
released on bail by the learned Magistrate on 18-2-80 and
they had invoked the jurisdiction of the Sessions Judge
apprehending that the case may be committed to the
Court of Session. We are in respectful disagreement with
the view taken by the Madhya Pradesh High Court and
Andhra Pradesh High Court in the two cases earlier
referred to by us and follow the decision of our learned

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25

brother Justice Behera in Mohan Beheracase, (1985) 59 Cut
LT 110 referred to supra."

12. A Full Bench of Calcutta High Court held in Shamim

Ahmed v. State, 2003 Cri LJ 2815 that the pre-arrest bail can be

granted under Section 438 of Cr.PC even if the Court has taken

cognizance and issued non-bailable warrants of arrest. It was

observed: -

"50. Much was argued on the provisions of Chapter VI of
the Code pointing out that once the process to compel the
appearance of the parties is taken, no authority can be

given to the High Court or the Court of Sessions under

section 438 of the Code for interference. Reference was
also made to section 70(2) of the Code which indicates
that every warrant of arrest issued by the court under the
Code was to remain in force until it is cancelled by the

court which issued it or until it is executed. So the
argument was that if a warrant of arrest issued by a court
of law after the filing of the chargesheet or under section

204 of the Code, the High Court or the Court of Sessions
while exercising power under section 438 is not

competent to cancel the said warrant of arrest though
there are other provisions on the basis of which such

courts can interfere with that order. Section 70(2) also
indicates that the court issuing the warrant of arrest has
the power to cancel it. So as soon as the issuing court is
apprised of the fact that an order under section 438 in
respect of the person against whom a warrant of arrest
has been issued is in force, it may cancel a non-bailable
warrant of arrest or can convert it in a bailable warrant of
arrest, the power of which is already given under sub-
section (3) of section 438. Section 70(2) of the Code is also
sufficient to indicate that as soon as the person against
whom a warrant of arrest has been issued is arrested, it
comes to an end, meaning that the warrant of arrest has

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been executed. So after arresting a person if it is detected
that there is an order under section 438, the arresting
officer can proceed in accordance with sub-section (3) of

.
section 438 immediately after the execution of the

warrant of arrest. So we do not think that the provisions
of section 70 or the other provisions of Chapter VI or
section 209 of the Code prohibit entertainment of an

application under section 438 of the Code after the charge
sheet is filed or the process is issued under section 204 or
section 209. It is pertinent to mention that under section
209, there are sufficient indications as regards the

actions to be taken with regard to bail. So the arguments
advanced on this score do not attract our judicial
confidence.
51. We have already discussed hereinabove placing

reliance on the different verdicts of the Apex Court that it

is not permissible to introduce any new word or provision
in a particular section. It is also indicated that there is no
ambiguity in the provisions of section 438 that requires
judicial scrutiny. It is true that a chargesheet in a case is

generally filed after finding a prima facie case. Similarly,
in a complaint case the learned Magistrate after
examining the witnesses and perusing the documents

produced, issues processes like a warrant of arrest. In
both these occasions cognizance is taken and thereafter,

processes are issued indicating that the learned
Magistrate was prima facie satisfied from the materials on

record as regards the commission of the offence and
thereafter issues appropriate process for apprehension of
the accused person. So, it has been argued that as soon as
the matter is pending before a court of law, there is no
necessity to interfere with that case under section 438 of
the Code. It is to be noted that we have been considering a
stage when an application under section 438 is to be filed.
There are cases in which chargesheets have been filed by
the police after investigation without the knowledge of
the accused persons showing them as absconders. Such
an accused person after the submission of the charge

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27

sheet and on issuance of a warrant of arrest gets the
knowledge of the case and then, only for the first time, he
has reason to believe that he may be arrested on an

.
accusation of having committed a non-bailable offence.

In a case of this nature, it cannot be thought of that the
person who was unaware of the case should be arrested
and kept in the custody of the police or of the court for

getting an opportunity of filing an application under
section 437 or section 439 of the Code. It is desirable to
keep in view the observations of the Law Commission and
also of the Apex Court as regards the necessity of passing

an order under section 438 in these days when political
vendetta and other factors rule the realm of police
investigation of a case. We are not unmindful of a
situation that in a complaint case a process can be issued

relying on the statements of the witnesses examined

under section 200. But the person against whom those
statements were made might be falsely implicated to
satisfy political or personal vengeance and may be
without his knowledge.

52. It is a settled principle of law that a man cannot be
stated to be guilty unless his guilt is proved after
adducing reliable evidence. Sending a person to custody

after finding his guilt is a rule. But before finding the
accused guilty, it is not always possible or permissible to

conclude on the basis of the chargesheet or on the basis of
the process issued under section 204 in a complaint case

that custody of that person is necessary. The word "bail"
has not been defined in the Code, the literal meaning of
the word "bail" is to set free or liberate a person on
security being given of his appearance. In Law Lexicon,
the word "bail" is defined "to set at liberty a person
arrested or imprisoned on security being taken for his
appearance". So the accepted meaning of "bail" is to
release a person from legal custody.
53. Under section 438 the question posed before the High
Court or the Court of Sessions is whether a person if
arrested on an accusation of having committed a non-

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bailable offence, can be released on bail. The
apprehension of such an arrest is possible only when the
person is being haunted by the police or other authorities.

.
In many cases, such haunting of a person is possible only

after the issuance of the warrant of arrest after the filing
of the chargesheet or after the steps under section 204 of
the Code are taken. At this juncture, a person cannot

move the courts under section 437 or under section 439
because he is not in custody. But he can very well
approach the High Court or the Court of Sessions under
section 438 for an appropriate order. The High Court or

the Court of Sessions in its turn is competent to examine
the case of the person and his suitability to be enlarged on
bail after the arrest and then only an order under section
438 is passed. So filing of an application under section

438 itself does not mean that the applicant will be entitled

to an order thereof. It is already settled that an order
under section 438 can be passed after examining each
case cautiously and carefully inasmuch as it is an order
converting a non-bailable offence into a bailable one and

protecting a person for some time from going to custody
after the arrest. At the risk of repetition, we point out that
we are not considering as to what order the High Court or

the Court of Sessions is competent to pass under section
438 and under which circumstances. We have simply

considered the question posed before this Bench very
minutely and keeping in view that section 438 is placed
between the two sections 437 and 439, we deem it proper

to accept the argument advanced by the present
petitioners.
54. So after careful scrutiny of the different case laws and
on perusal of the structure of the Code of Criminal
Procedure, we hold and conclude that there is no bar in
filing an application under section 438 after the filing of
the chargesheet or after the issuance of a process under
section 204 of the Code or after the issue of a warrant of
arrest in a complaint case. We also come to the conclusion
that such an application is quite maintainable at the post-

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cognizance stage of a case instituted on police report or
complaint after the court issues a process like a warrant
of arrest for the production of a person of having

.
committed a non-bailable offence. The question is

accordingly answered in the affirmative."

13. The Hon'ble Supreme Court held in HDFC Bank Ltd. v.

J.J. Mannan, (2010) 1 SCC 679 that provisions of Section 438 Cr.PC

cannot be invoked to exempt a person from surrendering to the

Court after the investigation is complete and a charge sheet is

filed against him. It was observed:-

19. The object of Section 438 CrPC has been repeatedly

explained by this Court and the High Courts to mean that
a person should not be harassed or humiliated in order to
satisfy the grudge or personal vendetta of the
complainant. But at the same time, the provisions of

Section 438 CrPC cannot also be invoked to exempt the
accused from surrendering to the court after the
investigation is complete and if a charge sheet is filed

against him. Such an interpretation would amount to
violence to the provisions of Section 438 CrPC since even

though a charge sheet may be filed against an accused
and a charge is framed against him, he may still not

appear before the court at all even during the trial.
20. Section 438 CrPC contemplates arrest at the stage of
investigation and provides a mechanism for an accused to
be released on bail should he be arrested during the
period of investigation. Once the investigation makes out
a case against him and he is included as an accused in the
charge sheet, the accused has to surrender to the custody
of the court and pray for regular bail. On the strength of
an order granting anticipatory bail, an accused against
whom a charge has been framed, cannot avoid appearing
before the trial court.

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14. The Bombay High Court also held in Himanshu v.

State of Maharashtra, 2014 SCC OnLine Bom 1582 that if the non-

.
bailable warrants of arrest are issued due to the default in

appearance, the jurisdiction under Section 438 Cr.PC will not be

available to the Sessions Court or the High Court. It was

observed:

18. A Magistrate, who issues a Warrant knows fully why
the Accused is avoiding to remain present before the
Court and non-appearance causes obstruction in the

smooth working of the Court. It is a hurdle in the speedy
disposal of the matter and therefore, the Magistrate

issues a Non-Bailable or Bailable Warrant. On a number
of occasions, a Magistrate is constrained to issue a Non-
Bailable Warrant to compel a person to appear before the

Court as the trial is at a standstill for want of appearance.
To remove this stagnation, the appearance is a must.
Though pre-arrest Bail can be granted under Section 438,

however, it cannot be granted in any or each and every
impending arrest in a Non-Bailable offence, which is

pursuant to a Warrant of Arrest issued by the learned
Magistrate for any other purpose but not under Section
204 of Cr.P.C. Thus, Anticipatory Bail cannot be sought

when Warrant is issued during the trial due to non-
attendance of the Accused. If all the sub-sections of
Section 438, are taken into account, the very language of
the statute compels this construction. While granting
Anticipatory Bail, the Court has to consider the four
factors including the antecedents of the Applicant. There
is a provision for interim Bail, so also it is obligatory for
the Court to give Notice to the Public Prosecutor and hear
the Prosecutor. However, if the Warrant of Arrest is
issued by the Judicial Magistrate for non-attendance of a
particular person, then it is not obligatory on the said

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Magistrate to hear the prosecution. There is no such
provision of interim Bail available while cancelling the
Warrant issued under Section 70 of Cr.P.C. Moreover,

.
while granting Anticipatory Bail, the Court has to see that

the Applicant shall be available for interrogation by the
Police Officer as and when required. Thus, it is amply
clear that the Anticipatory Bail, which is an extraordinary

provision which protects the liberty of an individual can
be used before he is taken into custody by the Police first
time after the registration of an offence against him. Once
he is taken in custody, this power is not available to the

Court and also cannot be invoked. Thus, within the
purport of Section 438 of Cr.P.C. grant of pre-arrest bail is
not available to the Sessions Court or the High Court
when a Warrant of Arrest issued is by the Magistrate

except Warrant of Arrest issued under Section 204 of

Cr.P.C. Under Section 204 of Cr.P.C., the Magistrate takes
cognizance and thereafter issues the Warrant, so this is
the first instance that the person is booked for some
offence, which may be either by the Police or by the

Magistrate.

15. Chhattisgarh High Court held in Injoriya v. State of

Chhattisgarh, 2021 SCC OnLineChh 3005 that where a person

jumped the bail by not appearing before the Court, an

application for pre-arrest bail is not maintainable. It was

observed:-

14. In the case at hand, it is not the case of the applicant
that she was enlarged on bail for some minor offence,
thereafter, during the trial, some graver offence is added
to the charge, but it is the case where the applicant
jumped the bail by not appearing before the trial Court on
the dates fixed for hearing after her release on bail,
therefore, in view of aforementioned decisions of High
Court of Madras and High Court of Madhya Pradesh, I am

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of the considered opinion that application for grant of
anticipatory bail under Section 438 of Cr.P.C. is not
maintainable when the liberty granted to applicant of

.
releasing her on bail was misused.

15. Accordingly, the anticipatory bail application is
dismissed as not maintainable. However, it would be open
for the applicant to take appropriate steps under Section

70(2) of Cr.P.C. for the recall/cancellation of a warrant
issued against her to be decided in accordance with law.

16. A Full Bench of Patna High Court held in Anil Kumar

v. State of Bihar, 2023 SCC OnLine Pat 2150 that even if the

summons have been issued in a matter involving the

commission of a non-bailable offence, the apprehension of

arrest will continue and an application under Section 438 Cr.PC

will lie. It was observed: -

"100. Thus, the apprehension of being arrested in a non-
bailable offence continues, notwithstanding only

summons having been issued by the concerned Court,
entitling the accused/petitioner to move for anticipatory

bail in such case before the Sessions Court or the High
Court."

17. A Full Bench of Uttrakhand High Court also

considered this question in Saubhagya Bhagat v. State of

Uttarakhand, 2023 SCC OnLine Utt 917 and held by the majority

that an application for pre-arrest bail would be maintainable

even after filing of the charge sheet in the Court. It was

observed: -

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"50. In view of the legal position as discussed above, I am
of the considered opinion that an application seeking
anticipatory bail would be maintainable even after filing

.
of charge sheet in Court. The reference is answered

accordingly."

18. However, Hon'ble Mr Justice Ravinder Maithani, J.

dissented and held that an application for anticipatory bail can

be moved by the accused before the charge sheet is filed and not

after the conclusion of the investigation. It was further held that

the word 'arrest' used in Section 438 of Cr.PC cannot include the

arrest during the trial. It was observed:-

"130. Therefore, in view of the foregoing discussion, this Court is of the view that the word "arrest", as finds place under Section 438 of the Code, does not relate to the

situation when after filing of the chargesheet, an accused appears before the Court in response to the process issued by the Court.

131. The word "arrest", as used under Section 438 of the Code is not attracted to the cases when an accused

appears and surrenders before the court after filing of the chargesheet. It means that post-filing of a chargesheet, if

an accused is summoned or required to appear before the court by any process of the Code, in such a situation, the provisions of Section 438 of the Code shall not be applicable.

134. As discussed hereinabove, there are various provisions of bail in the Code. Sections 437 and 439 of the Code are general and broad principles. Section 438 of the Code comes into play only when there is apprehension of arrest in a non-bailable offence. Now, if the word "arrest" as occurs in Section 438 of the Code is taken to cover all situations of arrest or all situations under which

an accused may be taken into custody by a court, it may make various other provisions of the Code redundant and may be a kind of violence to the provisions of Section 438

.

of the Code.

135. Suppose an accused is facing trial and he does not repeatedly appear during the trial, his bail is cancelled, sureties are notified and after hearing them, penalties are

imposed and non-bailable warrants are issued against him. In such a situation, if an application for anticipatory bail is permitted, it would have an implied impact on the judicial order passed by the court by which non-bailable

warrants were issued against him.

136. In the case of Bhadresh Bipinbhai Sheth (supra), the Hon'ble Supreme Court though considered anticipatory

bail during the trial when additional charge was framed, but in that case, the Hon'ble Supreme Court was not

invited to discuss the aspect of "arrest" as occurs in Section 438 of the Code and the proposition of law, on "arrest", as laid down by the Hon'ble Supreme Court in

the case of Sibbia (supra).

137. If it is construed that the word "arrest", as used under Section 438 of the Code may include any arrest or

any custody during trial or appeal, etc., it may definitely bring it in conflict with Section 389 of the Code. Section

389 of the Code makes provisions with regard to bail during the pendency of an appeal. Can an accused, who is facing trial in a criminal case, move an application for

anticipatory bail prior to judgment on the ground that he has apprehension that he may be convicted and may be taken into custody? If it is answered in the affirmative, it would make Section 389 of the Code redundant.

138. There may be many more such instances, viz, if in a criminal appeal before the Hon'ble Supreme Court, the appellant does not appear and for any reason, his warrant of arrest is issued, can an application for anticipatory bail in such a situation be entertained? If the word "arrest" as occurs in Section 438 is stretched to every situation, the

answer would be in the affirmative. But, in such a matter, anticipatory bail application may not be entertained. If in such a situation, an anticipatory bail application is

.

permitted to be entertained, it would be a kind of

interference in the judicial proceedings of the Hon'ble Supreme Court. Such an application may not be entertained because there is a distinct provision provided

post-judgment or bail in appeal.

139. The word "arrest", as used under Section 438 of the Code, may not be stretched beyond the purpose, for which it was enacted, i.e., insurance against police custody. It is

arrest by police during investigation alone, not beyond that. If in the name of personal liberty, the word "arrest", as used under Section 438 of the Code, is extended to any arrest, it may again create difficult situations. For

example, if on the date of judgment, one of the accused

does not appear and he is convicted with a sentence, in that eventuality, the Court would issue a non-bailable warrant for ensuring his presence, so as to serve out the sentence. Can it be said that because the convict is

apprehending his arrest, he may file an anticipatory bail application? Can an anticipatory bail application filed by such a convict be entertained? Definitely, it cannot be.

Section 438 of the Code has not contemplated such a situation.

xxxx

142. This has been further clarified by the Hon'ble

Supreme Court in the case of Satender Kumar Antil (supra) on 21.03.2023, when the Hon'ble Supreme Court observed that, "we would like to clarify that what we have enunciated qua bail would equally apply to anticipatory bail cases. Anticipatory bail is after all one of the species of bail." It may be noted that in the case of Satender Kumar Antil (supra) in category-A cases when an accused is not arrested during the investigation if such an accused appears before the court, he is not to be taken into custody. Which means, by virtue of the directions of the Hon'ble Supreme Court, an accused falling in category-A

cases, does not apprehend his arrest. The provisions of Section 438 of the Code come into play when a person apprehends his arrest in non-bailable cases. It means

.

that for category-A cases, as classified in the case

of Satender Kumar Antil (supra), an application for anticipatory bail may not at all be entertained because as stated, such a person is not to be taken into custody. He

cannot be said to be carrying any apprehension of arrest. While clarifying its order on 21.03.2023, the Hon'ble Supreme Court, in the case of Satender Kumar Antil (supra) was not invited to interpret the word

"arrest", as occurs in Section 438 of the Code and the principle of law laid down by the Hon'ble Supreme Court in the case of Sushila Aggarwal (supra) on anticipatory bail.

143. In view of the foregoing discussion, I am of the view

that an application for anticipatory bail is not maintainable after the chargesheet has been filed in the court.

19. Since the matter has been decided by the various

Hon'ble Division Benches and the Full benches, it is not

necessary to refer to the judgments of various Single Judges to

burden the present judgment.

20. It is apparent from the perusal of these judgments

that the jurisdiction under Section 438 of Cr.PC is available to

the Court of Sessions and the High Court when the non-bailable

warrants of arrest have been issued by the Court; however, the

stage at which warrants have been issued has also to be

considered. When the warrants have been issued at the initial

stage at the time of taking of the cognizance or after the

addition of some graver offence, the Court can exercise the

.

jurisdiction to grant the pre-arrest bail; however, this bail

should be granted for a limited time to enable the accused to

approach competent Court seized of the matter to obtain a

regular bail from the Court. This is so because the competent

Court is seized of the matter and is in the best position to say

whether bail should be granted to the accused or not. The

jurisdiction vested in the competent Court to grant bail should

not be usurped by the Court of Sessions or the High Court merely

because they possess the power under Section 438 of Cr.PC to

grant pre-arrest bail. However, when non-bailable warrants of

arrest have been issued due to the default in compliance with the

conditions of the bail or non-appearance before the Court, the

jurisdiction under Section 438 of Cr.PC should not be exercised

to thwart the course of justice and permit the accused to abstain

from the Court.

21. In the present case, it has been asserted that the

non-bailable warrants of arrest were issued because of the

addition of an offence punishable under Section 328 of IPC

which is a graver offence and is triable by the Court of Sessions.

Therefore, the jurisdiction of the Court to grant pre-arrest bail

will be available. Hence, the present application is allowed and

.

order dated 29.12.2023 is made absolute.

22. The observations made hereinbefore shall remain

confined to the disposal of the petition and will have no bearing,

whatsoever, on the merits of the case.





    26th February, 2024
          (Chander)
                         r      to                (Rakesh Kainthla)
                                                       Judge