NARAHARI ROUT Vs. STATE OF ORISSA

JUDGEMENT

(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 nonbailable offence is taken and process is issued.

(2.) This Court in the case of Mohan Behera and two others v. State 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 sub-section 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 Subsection (1) has been passed. Subsection (3) would come into play only after an order under Subsection (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 Sessions for an order for anticipatory bail is already over.

(3.) In the case of Sri Bhramar alias Bhramarbar Mohapatra and another v. State of Orissa 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 or the Court in the matter of grant of 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 Sessions. 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 offence 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 be set aside or modify and 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 others v. State of Orissa 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.