SHEIK KHASIM BI Vs. STATE

JUDGEMENT

(1.) The short question, which is of general importance, that arises for our consideration is whether under S. 438 of the Cr. P.C. 1973 the High Court or the Sessions Court has power to grant anticipatory bail to a person after the competent criminal court has taken cognizance of the case and has issued process, viz. warrant for arrest of that person.

(2.) A Division Bench consisting of Jeevan Reddy J. and Upendralal Waghray J, disagreed with the view taken by an earlier Division Bench of this court consisting of Chennakesav Reddy J., as he then was and Rama Rao J., in Kamalakara Rao v. State of A.P. (1983) 1 APLJ 97 and consequently referred the question to the Full Bench. Before we proceed to consider the scope of S. 438, Cr. P.C. and several points urged, it is necessary to set out a few more details as to how this matter has come up before us. To start with, Madhusudan Rao, J. in N. Dasaratha Reddy v. State, (1975) 2 APLJ (HC) 214 held that S. 438 Cr. P.C. applies only to arrests where the court's process has not been issued. Ramachandra Raju, J. in Criminal M.P. No. 884 of 1981 agreed with the view taken by Madhusudhan Rao J. Later, Punnayya J., doubting the correctness of the view taken by Madhusudhan Rao J. and Ramachandra Raju J., referred the matter in Kamalakara Rao v. State of A.P. supra, to a Bench. The Division Bench however upheld the view taken by Madhusudhan Rao, J. In the present case crime No. 63 of 1985 was registered at Narasaraopet police station against two accused on the basis of a report made by P.W.1, A. 2 was granted anticipatory bail by the Ist additional Sessions Judge Guntur. By the time a similar application by A. 1 came up before the same Judge, the charge sheet i.e., the police report, was filed by the police before the Magistrate. The learned Ist Addl. Sessions Judge rejected the application because of that circumstances, obviously following the decision of the Division Bench in Kamalakara Rao's case supra. Then an application was filed before this court under S. 438 Cr. P.C. on behalf of A. 1. The petition came up before Seetharam Reddy J. who felt that the decision in Kamalakara Rao's Supra requires reconsideration, and accordingly referred the matter to the Division Bench. The Division Bench as mentioned above disagreed with the view taken in Kamalakara Rao's case supra, and therefore on a reference the matter has come up before this Full Bench. It can, therefore, be seen that the difference of judicial opinion, to put it in other words, is on the short question whether the power to grant anticipatory bail under S. 438 Cr. P.C. comes to an end after the Magistrate has taken cognizance of an offence and issued process against the accused.

(3.) S. 438, Cr. P.C. was introduced for the first time in the new Cr. P.C. 1973 and provides for the issuance of a direction for the grant of bail to a person who apprehends arrest. The Section reads thus :- 438. Direction for grant of bail to person apprehending arrest :-