JUDGMENT
Rama Rao, J.
1. This criminal miscellaneous petition for anticipatory bail under S. 438, Cr.P.C. is directed to be posted before Division Bench by Punnayya, J. as it was felt that the decisions of Madhusudan Rao, J. in N. Dasaratha Reddy v. State, 1975 (2) APLJ (HC) 214 and Ramachandra Raju J. in Crl.M.P. No. 884 of 1981, D/- 23-4-1981 requires reconsideration in view of the decision of the Supreme Court in Gurbaksh Singh v. State of Punjab, .
2. The petitioner filed an application for anticipatory bail under S. 438, Cr.P.C. as he apprehends arrest in a criminal case where the petitioner along with others are charge-sheeted for conspiracy to commit murder under Section 120-B, I.P.C. The main plea of the petitioner is that he is not in any way concerned with the crime and that he is an Agricultural B.Sc., graduate and even though his name is not mentioned in the F.I.R. and even though at the initial stage he was not considered to be connected with the crime, he is sought to be implicated and the case is sought to be foisted on him at this belated stage and therefore, anticipatory bail should be granted to him.
3. The Public Prosecutor raised a preliminary objection as to the maintainability of this application. It is contended that the charge-sheet has been filed and the non-bailable warrant is issued by the Magistrate and at this stage, the petitioner is not entitled to invoke S. 438, Cr.P.C. and seek anticipatory bail. Even on merits also, this is not a fit case for granting anticipatory bail as two witnesses spoke to the participation of the petitioner in the conspiracy.
4. The relevant provision that controls the decision is S. 438, Cr.P.C. which is as follows :
“438(1) when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail, (2) When the High Court or the Court of Session makes a direction under Sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including – (i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make an inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer.
(iii) A condition that the person shall not leave india without the previous permission of the Court.
(iv) such other condition as may be imposed under sub-section (3) of S. 437 as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person he shall issue a bailable warrant in conformity with the direction of the court under sub-section (1).” Section 438 confers power on the High Court and the Court of Session to grant bail in the event of imminent arrest of a person. Section 438 comprises three facts, sub-section (1) is an enabling provision to seek direction for bail when a person reasonably apprehends the arrest on an accusation of non-bailable offence. Sub-section (2) is concerned with the enumeration of condition that may be imposed by the court while granting anticipatory bail, sub-section (3) pertains to implementation of the order and continuity of proceedings under Criminal P.C. in the event of order under S. 438. The first limb of this sub-section mandates the officer in charge of a police station to release the person on bail pursuant to the order under S. 438. The second limb obligates the Magistrate to issue bailable warrant only instead of non-bailable warrant in the event of taking cognizance of the case subsequent to the order passed under sub-section (1). The power of the Magistrate to take cognizance of the case and issue a warrant is not fettered but he has to mold the warrant and issue bailable warrant in consonance with the order passed under sub-section (1). The provision is designed to save the person from arrest and consequent harassment or humility and the apprehension of arrest on an accusation of non-bailable offence confers right on the person to move for anticipatory bail. The Supreme Court in Gurbaksh Singh v. State of Punjab (1980 Cri LJ 1125) (supra) considered the amplitude of S. 438, Cr.P.C. in the context of considering the correctness and appropriateness of the principles and strings propounded by the Full Bench of the Punjab High Court regarding the grant of anticipatory bail under S. 438, Cr.P.C. The anticipatory bail was sought for before the F.I.R. was filed and the Full Bench of Punjab High Court while declining to grant bail held that S. 438 cannot be considered or pressed into service in isolation and it is conditioned by the provisions in Section 437 and 439, Cr.P.C. The essence of the principles enuciated by the Supreme Court are as follows :-
“The distinction between an ordinary of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the later is granted in anticipation of arrest and is therefore effective at the very moment of arrest.”
It is also observed at page 1648 as follows :-
“Thirdly the filing of a First Information report is not a condition precedent to the exercise of the power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not yet filed. Fourthly, anticipatory bail can be granted even after an F.I.R. is filed, so long as the applicant has not been arrested. Fifthly the provisions of S. 438 cannot be invoked after the arrest of the accused. The grant of “anticipatory bail” to an accused who is under arrest involves a contradiction in terms, in so far as the offence or offences for which he is arrested, are concerned. After arrest, the accused must seek his remedy under S. 437 or S. 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.”
The line of demarcation between S. 438 and Sections 437 and 439, Cr.P.C. was highlighted and in the context of considering the overlapping of the ingredients under the said provisions the Supreme Court observed that the demarcating line is the arrest. Regarding the ambit of the expression “reason to believe” it is held 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”
5. The learned public prosecutor contended that the decision of the Supreme Court is not applicable to the facts of court is not applicable to the facts of the case as the charge-sheet is filed and non-bailable warrant is issued by the Magistrate in the instant case. The learned public prosecutor heavily relied upon the decision of this Court in N. Dasaratha Reddy v. State 1975 (2) APLJ (HC) 214 (supra). After the completion of investigation the police, Aluru submitted a charge-sheet against 3 accused for murder and he Munsif Magistrate Aluru took cognizance of the same. As A-1 and A-2 were already under remand and as A-3 is reported by the police to be arrested the Munsif Magistrate issued a non-bailable warrant against the petitioner. At this stage the applicant filed an application under S. 438 before the Sessions Court. Kurnool to direct the Munsif Magistrate, Aluru to release the petitioner on bail in the event of his surrender before the court. The Sessions Court dismissed the application. In the context of considering this aspect it was held that S. 438 can be invoked up to the stage of commencement of process by the court, Madhusudan Rao, J. held as follows :-
“The court’s process must be respected first before any one can seek the aid of a Court. If there is a warrant for the arrest of a person, such person may submit himself to arrest or may himself appear before the Court and seek bail under S. 437. Section 438 applies only to arrests while the court’s process has not been issued. That is clear if S. 438(3) is read along with section.”
Ramachandra Raju, J.
in Crl.M.P. No. 884 of 1981 dated 23-4-1981 agreed with the view taken by Madhusudan Rao, J. and held that this issue did not arise for consideration in the decision of the Supreme Court.
6. When the process of court is set in motion by filing the charge-sheet and issue of non-bailable warrant the applicant is precluded from having recourse to S. 438, Cr.P.C. for anticipatory bail. Section 438(3), Cr.P.C. makes the position explicity clear that the warrant has to be modulated if the order under Section 438 precedes the initiation of proceedings before the Magistrate. Section 438(3) is concerned with a situation of taking cognizance of the offence and issuance of warrant subsequent to or during the subsistence of the order under S. 438(1), Cr.P.C. The question of passing the order under S. 438(1) is not visualised when the proceedings commence before the Magistrate Section 438(3) is confined to vary the warrant in the event of the order under S. 438 and there is absolutely no indication of cancellation or withdrawal of warrant. Therefore, the power under S. 438 does not survive the initiation of proceedings by filing charge-sheet and issue of arrest warrant. In the absence of provision for cancellation or withdrawal of warrant the situation of parallel exercise of power arises when the order under S. 438 is passed subsequent to issued of warrant. The essence of S. 438(3) is that the Magistrate has to vary the warrant if the proceedings commence after the order is passed under S. 438(1) and the terminal of the exercise of power under S. 438 is the initiation of proceedings under Cr.P.C. by the Magistrate.
7. While doubting the correctness of the decision of Madhusudan Rao, J. and Ramachandra Raju, J. Punnaiah, J. in his order of reference held that the exercise of power under S. 438, Cr.P.C. extends to the stage of actual arrest and the issuance of non-bailable warrant provokes an imminent apprehension of arrest. The power under S. 438 is exhausted on actual arrest only and the issuance of non-bailable warrant and the process of taking cognizance by the Magistrate does not impede or arrest the exercise of power under Section 438, Cr.P.C. Punnaiah, J. profusely referred to the observations of the Supreme Court made in the context of exercise of power under S. 438, Cr.P.C. at the stage of filing the F.I.R. The Supreme Court did not have the occasion to consider the impact of sub-section (3) of S. 438. The Supreme Court while considering the exercise of power under S. 438 when the F.I.R. is filed, stated that S. 438 continues to have its way even after the F.I.R. is filed. The Supreme Court is not concerned with the situation of issue of non-bailable warrant at the time the power under S. 438 is invoked and there was no occasion to consider the impact of Section 438(3), Cr.P.C. In the circumstances, we approve the judgment of Madhusudan Rao, J. in N. Dasaratha Reddy v. State, 1975 (2) APLJ (HC) 214 (supra). Therefore, the preliminary objection raised as to the maintainability of this petition by the learned Public prosecutor is sustainable and this petition is not maintainable at this stage.
8. On merits also it is stated by the learned public prosecutor that this is not a fit case for anticipatory bail. The charge-sheet is already filed and two persons spoke to the participation of the petitioner in the conspiracy and therefore the charge-sheet laid under Section 120-B, I.P.C. is already pending. In view of the fact that the two witnesses already spoke to the fact of participation of the petitioner in the conspiracy, we feel that this is not a fit case for granting anticipatory bail even on merits. Hence, this petition is dismissed.
9. Petition dismissed.