HAKAM SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS Court had already rejected the application for anticipatory bail of the co-accused of the petitioners. As allegations of the complainant, these petitioners alongwith the co-accused had killed a helpless lady. The autopsy reveals that she has died due to asphyxia. The committing Magistrate on taking cognizance of the offence had issued non-bailable warrants against the accused-petitioners. Instead of appearing before the Magistrate, the petitioners had approached this Court for anticipatory bail after it was rejected by the learned Additional District Judge, Ropar.

(2.) MR . Kalra, learned Counsel for the petitioners relying upon the judgment of the Single Bench of this Court in Balwant Singh and others v. State of Punjab and another, 1983(1) Recent Criminal Reports 470 contends that as per provisions of sub-section (3) of Section 438 Cr.P.C. a Magistrate while taking cognizance of the non-cognizable offence was required to issue bailable warrants only and not non-bailable warrant. Thus he maintains that the petitioners are entitled to be released on anticipatory bail. The above referred observation was made by the Single Bench while deciding the controversy whether in a case where Magistrate on a complaint had issued non-bailable warrant, an application under Section 38 Cr.P.C. for anticipatory bail is maintainable. In that case, it was not brought to the pertinent notice of the Single Bench that word such person figuring in sub-section (3) of Section 438 Cr.P.C., pertains to the person who had already secured anticipatory bail on apprehension of being arrested on an accusation of having committed a non-bailable offence. With utmost respect to the learned Judge. I fail try agree with his observation that under Section 204 Cr.P.C. Magistrate has powers to issue bailable warrants only in a warrant case.

(3.) A conjoint reading of the entire section leaves no doubt that sub-section (1) empowers the High Court or the Court of Session to issue a direction for anticipatory bail when any person having reasonable apprehension that he may be arrested on an accusation of having committed non-bailable offence approaches such Court. It is further clarified that the Court may direct in such cases that in the event of such arrest, the accused shall be released on bail. Sub-section (2) empowers the High Court and the Court of Session to impose such conditions in such directions under the facts and circumstances of the particular case including the one enumerated therein while sub-section (3) provides that if such person is thereafter arrested, without warrant by an officer-in-charge of a police station, on such accusation, then he shall be released on bail, if he is prepared to give bail and if a Magistrate decides to take cognizance of such offence against such person, then only bailable warrant in conformity with the direction of the Court under sub-section (1) shall be issued. Consequently, there is no escape but to hold that the provisions of sub-section (3) only direct the Magistrate to issue non-bailable warrants while taking cognizance of the offence in non-bailable cases against those persons only which had procured anticipatory bail from the High Court or the Court of Session under the provisions of sub-Section (1) of Section 438 of the Code. By no stretch of imagination, it can be inferred that the provisions of sub-section (3) of Section 438 of the Code qualify the powers of the Magistrate in issuing warrants of arrest of an accused person under Section 204 of the Code after taking cognizance of a warrant case. The provisions of Section 204(1) read as under :-