NIRBHAY SINGH Vs. STATE OF M P

JUDGEMENT

(1.) This is an application for anticipatory bail under Section 438 Cr PC filed by two accused in a private compliant alleging commission of offence under Section 302, IPC read with Sec. 34, I.P.C. The learned Single Judge who admitted the petition directed issue of notice to the State and further directed that in the meantime the applicant shall not be arrested until further orders. One of us (Bhat, C.J.) who heard the matter at a subsequent stage doubted the maintainability of the application and also the legality of the interim order and referred the matter to a Division Bench. The Division Bench was of the opinion that the matter should be examined by a Full Bench and accordingly has been made. That is how the matter has come before us.

(2.) The police registered a case against two accused on the information furnished by the complaint. After investigation, charge-sheet has been filed against the two accused. Thereafter, the first informant filed a private complaint before the Court concerned alleging that he had laid information with the police against seven persons, but information was recorded only against two persons and this was done so to help the other persons to escape the process of law. The complaint was, therefore, directed against the remaining five persons. The learned Magistrate recorded the sworn statement of the complaint and the statement of other witnesses produced, took cognizance and directed issue of non-bailable warrant against the five accused under Sec. 204, of the Code of Criminal procedure, 1973 (for short 'the code'). Thereafter, two among the five accused have filed the present application under Section 438, Cr PC

(3.) Learned Additional Advocate General appearing for the State contended that an order of anticipatory bail under Section 438, Cr. P.C. can be passed only as long as the competent criminal Court has not taken cognizance or issued process and once the Court has done so, there is no jurisdiction surviving under Sec. 438 of the Code. He places reliance on a decision of a learned Single Judge of the Rajasthan High Court in Rawat Dan v. State of Rajasthan, 1975 Cri LJ 961 on the other hand, Shri S. L. Kochar, learned counsel for the petitioner and Shri S. C. Datt, Advocate, appointed amicus curiae submitted that the decision of the Rajasthan High Court has not been followed by the other High Courts, that an earlier decision of the Punjab and Haryana High Court taking similar view was over-ruled by a Division Bench of the Punjab and Haryana High Court, and that the High Court of Andhra Pradesh and this Court itself have taken a view contrary to the view taken by the Rajasthan High Court. Both sides have taken us through the relevant provisions of the Code support of their respective contentions on the question of maintainability of the application.