TMI Blog1998 (3) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... is father were having illicit relations with the sister-in-law of the deceased and, therefore, she was feeling insulted and that is why she has committed suicide. On the basis of this, FIR was registered on 18th November, 1995. However, the petitioner was released on bail on 4-1-1996. Subsequent thereto the father of the deceased has filed a complaint before the Additional Chief Metropolitan Magistrate, 24th Court, Borivli, Mumbai. On the basis of this, the learned Magistrate issued non-bailable warrant. The petitioner came to know about the issue of non-bailable warrant when a newspaper report was published on 10th March, 1998. In view of the above, the petitioner moved an application for anticipatory bail under Section 438 of the Cr.P.C. which has been rejected by the Additional Sessions Judge, Gr. Mumbai by his order dated 30th March, 1998. 2. It was submitted before the learned Additional Sessions Judge that the learned Magistrate has taken cognizance of an alleged offence punishable under Section 302, I.P.C. It was submitted that this is a clear abuse of the process of Court. The petitioner has already been released on bail for offences which are based on the same incident. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hyam Sunder informing the petitioner that the learned Metropolitan Magistrate had issued a fresh non-bailable warrant against the petitioner because of his absence in the Court and had now fixed the next date as 18th December 1991 for trial. The petitioner also received a letter dated 5-10-1991 from his Advocate informing him that as the Advocates were on strike he had not appeared in the Court of the learned Metropolitan Magistrate and therefore the learned Metropolitan Magistrate had issued a fresh non-bailable warrant against the petitioner and had adjourned the case to 18th December, 1991. The petitioner says that he had already booked a ticket for 14th December, 1991 and he would leave Bombay on 14th December 1991 by Paschim Express by 11 a.m. and that he would go to Delhi and then he would get the non-bailable warrant cancelled and he undertakes to remain present in the Tis Hajari Court of the learned Metropolitan Magistrate, Smt. Sangita Dhingara on 18th December 1991 to face the trial. 3. The present application is clearly misconceived. No such anticipatory bail can be granted after a Magistrate has issued a warrant. The application is dismissed. 3. It is submitted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut notice should issue to the Public Prosecutor or the Government Advocate forthwith and the question of bail should be re-examined in the light of the respective contentions of the parties. The ad interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage. Should the operation of an order passed under Section 438(1) be limited in point of time? Not necessarily. The Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an FIR in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the FIR as aforesaid. But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time. After noticing the aforesaid observations the Full Bench has held that similar modalities can also be applied in the case of granting anticipatory bail under Section 438(1) even in a case where the Criminal Court takes cognizance a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a learned single Judge. A learned single Judge of the Punjab and Haryana High Court had taken a view against the maintainability of such an application in Ramlal v. State of Punjab. The Division Bench held that jurisdiction under Section 438 is not dependent on whether the Magistrate acting under Section 204 has issued bailable or non-bailable warrant, that the arrest may be at the instance of the police or at the instance of the Magistrate who has issued the warrant and in either case it may give rise to an apprehension in the mind of the accused that he : may be arrested and such apprehension, if it arises in relation to a non-bailable offence, entitles ; him to move for anticipatory bail. The Court held that the Court may refuse to give relief if the i warrant is a bailable one since it has the same 'effect as an order under Section 438. 6. The Sheikh Khasim Bi v. State 1996 Cri LJ 1303 a Full Bench of the Andhra Pradesh High Court agreed with the view taken by the Punjab and Haryana High Court after elaborate consideration of the legislative history of the provision. The Court held that the provisions in Section 438(3) do not have the amplitude of the provisions in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was observed. . . The main governing factor for the exercise of jurisdiction under Section 438, Cr.P.C. is the apprehension of arrest by a 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 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. There ..... X X X X Extracts X X X X X X X X Extracts X X X X
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