JUDGMENT
L. Mohapatra, J.
1. Both the above applications have been filed under Section 438 of the Criminal Procedure Code for grant of anticipatory bail. Both the applications also arise out of respective complaint cases where cognizance has been taken. Question that arises for consideration is whether an application for anticipatory bail under Section 438, Cr.P.C. shall be maintainable after cognizance of non-bailable offence is taken and process is issued.
2. This Court in the case of Mohan Behera and two Ors. v. State, reported in 59 (1985) CLT 110 dealt with the question raised and decided as follows :
“It would be seen that Section 438 of the Code envisages three stages, Sub-section (1) enables a person for making an application for anticipatory bail when he reasonably apprehends his arrest in respect of accusation of commission of a non-bailable offence. Sub-section (2) enumerates the conditions, which may be imposed by the Court while making an order under Section 438(1). Sub-section (3) pertains to the execution or implementation of the order passed under Sub-section (1). The first part of Sub-section (3) mandates the police officer to release the person on bail pursuant to an order made under Sub-section (1). The second part of this Subsection obligates the Magistrate taking cognizance of an offence to issue bailable warrant only instead of non-bailable warrant against the person in whose favour an order under Sub-section (1) has been passed. Sub-section (3) would come into play only after an order under Sub-section (1) has been passed in favour of a person. If a Magistrate has already taken cognizance of an offence and has issued a non-bailable warrant the stage for invoking the jurisdiction of the High Court or the Court of Session for an order for anticipatory bail is already over. If the submission of the learned counsel for the petitioners in the instant case is accepted, it would also mean that if a person has already been arrested in execution of a warrant of arrest issued by a Magistrate who has taken cognizance of an offence and is later released on bail and then jumps bail and the Magistrate again issues a non-bailable warrant of arrest against him, that person may approach the Court for anticipatory bail. Section 438 of the Code certainly does not envisage such a position. The petitioners had already been arrested in the course of investigation and had been released on bail by the investigating agency. After the submission of charge-sheet, non-bailable warrants of arrest have been issued against the petitioners by the learned Sub-divisional Judicial Magistrate after applying his mind and taking cognizance. In such a case, an application under Section 438 of the Code would not be competent.”
On perusal of the observation made by this Court it is clear that if a Magistrate has already taken cognizance of an offence and has issued non-bailable warrant, the stage for invoking jurisdiction of the High Court or the Court of Session for an order for anticipatory bail is already over.
In the case of Sri Bhramar alias Bhramarbar Mohapatra and Anr. v. State of Orissa, reported in 51 (1981) CLT 391, this Court has again held that Section 438, Cr.P.C. does not bring in its ambit the case of an accused against whom a Court has already issued process by taking cognizance of the offence. The relevant paragraph i.e., paragraph – 7 of the said judgment is quoted below :
“Sections 436, 437, 438 and 439 deal with the powers of the Court in the matter of grant or refusal of bail. Section 436 deals with grant or refusal of bail in bailable offences. Section 437 deals with grant or refusal . of bail in non-bailable offences by a Court other than the High Court or the Court of Session. Section 438 deals with grant of anticipatory bail, which means bail in anticipation of arrest. The power under this Section has been conferred on the High Court and the Court of Session. The 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. Section 439 deals with special powers of High Court or Court of Session regarding bail. Under Sub-section (1), Clause (a) of Section 439 the High Court or the Court of Session can direct that a person accused of an offences and in custody be released on bail and may impose conditions if the offence is of the nature specified in Section 437(3). Under Clause (b) it can set aside or modify any condition imposed by the Magistrate while granting bail to a person. Under Sub-section (2), it can cancel bail granted by itself or by the lower Court. Thus the power under Section 439, Criminal Procedure Code is supplementary or subsidiary in that it completes the provisions in Sections 436 and 437 with regard to the grant of bail. So the question whether a person who is not in custody or one who is not required to surrender to any custody can be granted bail under Section 439, Criminal Procedure Code must, therefore, be determined with reference to the provisions of Section 437, Criminal Procedure Code.”
Similar view has also been expressed by this Court in the case of Ashok Kumar and Ors. v. State of Orissa, reported in 89 (2000) CLT 516. In the aforesaid judgment the Court has also placed reliance on the case of Bhramarbar Mohapatra v. State (supra) and held that if cognizance is taken by a Magistrate for an offence and process is issued an application under Section 438(1), Cr.P.C. is not maintainable.
3. Though law has been settled by this Court as is evident from the aforesaid three decisions, the following decisions were placed for consideration of the Court. In the case of P. V. Narasimha Rao v. State (CBI), reported in 1997 Cri.L.J. 961, Division Bench of the Delhi High Court held that where summons only have been issued against accused persons an application for anticipatory bail shall be maintainable.
In the case of Akhlaq Ahmed F. Patel v. State of Maharashtra, reported in 1998 Cri.L.J. 3969, the Bombay High Court held that an application for anticipatory bail can be allowed even after summons or warrant is issued by a Magistrate.
In the case of Natturasu and Ors. v. The State, reported in 1998 Cri.L.J. 1762, Single Bench of the Madras High Court held that mere issuance Of warrant on taking cognizance of non-bailable offence will not take away powers of the High Court in granting anticipatory bail.
In the case of Nirbhay Singh and another Vrs. The State of
Madhya Pradesh, reported 1995 Cri.L.J. 3317, Full Bench of the
Madhya Pradesh High Court held that anticipatory bail can also
be granted even after Magistrate issued process or at the stage
of commitment of the case to the Sessions Court or event at a
subsequent stage.
4. On perusal of the judgments referred to above and on perusal of the reasons assigned in the judgments taking a contrary view than that of this Court, I am of the opinion that this question of law needs to be decided by a Larger Bench of this Court. Accordingly the question as to whether a High Court or the Court of Session has power to grant anticipatory bail in a case where cognizance has been taken and summons/warrant of arrest has been issued or not, may be referred to a Larger Bench for decision.
Since the matter is referred to a Larger Bench in both the cases, the petitioners in I.C.C. No. 8/2002 pending in the Court of S.D.J.M., Hindol and I.C.C. No. 132/1993 pending in the Court of J.M.F.C. (R), Cuttack respectively may not be arrested in the meanwhile.