G.B. Pattnaik, J.
1. The complainant is the petitioner who challenges the order of the learned Sessions judge, Ganjam dated 12-3-1980 by which order t,he accused opposite parties were released on bail obviously in exercise of powers conferred Under Section 438 Cr.P. C. since the accused persons . apprehened arrest in course of the committal proceedings for being connitted to the Court of session. When the case was heard on 30-11-1981, a learned single Judge of this Court was of the view that the case be heard by a Division Bench, Accordingly this revision has been placed before the Division Bench for disposal.
2. The short facts leading to the grant of bail by the -impugned order are that on the basis of an FIR lodged by the petitioner, the police registered a case and after completion of investigation submitted a final report on the ground that culprits could not be detected. The petitioner filed a protest petition which was treated as a complaint and the complainant's initial statement was recorded. Thereafter the Magistrate conducted an enquiry Under Section 202. Cr P. C. and then took congnizance Under Sections 149/324/337 and 296 IPC as well as under Secs 3 and 4 of the Explosive Substance Act and Issued summons against the accused persons. The accused persons appeared before the Magistrate on 18-2-1980 and on their prayer, were released on bail While the matter was thus proceeding before the Magistrate the opposite parties who are the accused persons apprehending that the case may be committed to the Court of Session and they may be again taken into custody filed an application before the learned Sessions Judge Under Section 438. Cr P. C. praying for an anticipatory bail in case the matter is committed to the Court of Sessions for trial. By the impugned order the learned Sessions Judge allowed the prayer of the opposite parties and ordered that in the event of committal the accused persons would be released on bail of Rs. 2000/- each with one surety each for the like amount to the satisfaction of the learned Magistrate, First Class, Surada. The complainant-petitioner has impugned the aforesaid order of the learned Sessions Judge in the present case.
3. The learned counsel for the petitioner contends that once the accused persons appeared before the learned Magistrate pursuant to sumnons and were released on bail, obviously the said order of release is one Under Section 437 of the Code of Criminal Procedure. In such circumstances, provisions of Section 438 of the Code of Criminal Procudure cannot have any application and the learned Sessions Judge therefore, had no jurisdiction to grant an order of anticipatory bail invoking his jurisdiction Under Section 438, Cr. P. C.
4. Mr. Mohapatra, the learned counsel for the opposite parties, on the other hand contends that there is no limitation with regard to the time or stage at which a person accused of committing a non-bailable of fence can invoke the jurisdiction of the Court Under Section 438, Cr P. C. If the person concerned has apprehension and he reasonably believes that he may be arrested of an accusation of having committed a non-bailable offence then he can invoke the provisions contained in Section 438 Cr. P. C. even at the stage of committal proceedings. In that view of the matter, the learned Sessions judge was fully justified in passing the impugned order. To appreciate the correctness of the rival submissions it would be profitable to note the objects for which Section 438 Cr. P. C. was brought in to the statute and the mischief which was sought to be remedied. The 41st report of the Law Commission dealt with this aspect and Chapter XXXIX of the said Report deals with bail. The expression 'anticipatory bail' has not been used in the statute but the Commission in its report nomenclatured the said provision for bail as anticipatory bail and observed :
'The suggestion for directing the release of a person on bail prior to his arrest (commonly known as 'anticipatory ball') was carefully considered by us. Though there is a conflict of judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false causes for the purposes by getting them detained in jail for some days In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abstond, or other- wise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.'
To achieve the aforesaid purpose and object, Section 438 was engrafted into the Code of Criminal Procedure to prevent undue Harassment of innocent persons who are likely to be arrested by the police at the behest of influential political rivals who may be in power, The term 'anticipatory bail' means bail in anticipation of arrest. 'Arrest' consists of the actual seizure or touching of a person's body with a view to his detention. The provision for regular bail in the Criminal Procedure Code are contained in Sections 437 and 439. The distinction between an order of regular bail and an order of anticipatory bail is that the former is granted after arrest and, therefore, means release from the custody of the police, whereas the latter is granted in anticipation of arrest and Is, therefore, effective at the very moment of arrest. The Intention of the law makers is to relieve a person from unnecessary apprehension or disgrace of being detained in jail for some days before he can apply for bail in cases where he may have been implicated falsely by designing rivals. The section postulates a stage where the Court having jurisdiction over the offence has not taken cognisance of the offence. It does not make in its ambit the case of an accused against whom a Court has already issued a warrant by taking cognisance of the offence. We would, now notice some authorities on this point. A Bench of Madhya Pradesh High Court in the case of Ramsewak and Ors. v. State of M. P., 1979 Crl. L. J. 1485, considered the scope and effect of Section 438 Cr. P. C. and came to hold:
' Now in Section 438(1) of the Code what does the expression 'when any person has reason to believe that he may be arrested' mean Does it refer to a particular time or stage of such apprehension of arrest. In our view, it does not refer to any time or stage, unless the gap is fllled in by addition of certain words or by supplying foreign meterial not contained in the provision, which is not permissible by law. The words and language of Section 438 (1) and (3) are so very clear and unambiguous so as to lead to the only Irresistible conclusion that, wherever any person apprehends that he is likely to be arrested in a non-bailable offence, he may apply either to the High Court or Court of Sessions for grant of anticipatory bail, either before his actual arrest or during the course of committal proceedings if (he) apprehends that he is likely to be committed under custody by the Magistrate while committing the case to the Court of Session. It is the apprehension of any person who has reasons to believe that he may be arrested on an accusation of having committed a non-bailable offence, which has to be given due consideration and weight. If his apprehensions continue there is nothing in the section which debars him from applying for an anticipatory bail in case of his apprehended commitment under custody. If it were not so, the provision would be rendered nugatory and the very object and purpose of the legislature to save the person from undergoing the rigours of jail even for few days, specially when it is yet to be seen whether prosecution is false or not would be frustrated. Moreover, the aforesaid view we have taken is in consonance and in accordance with the scheme and intention of the legislature which is clear from the background and the historical facts mentioned above which led to the introduction of this new provision of anticipatory bail.'
With respect to the learned judges of the Madhya Pradesh High Court, we are of the opinion that the learned Judges read much more into the legislative intent and the historical background for insertion of Section 438 in the Code than what is expressed In the report of the Law Commission. In our considered opinion, it was never the legislative intent to make Section 438 applicable at all stages if the person concerned is not in custody even in circumstances where he has already invoked the provisions of Section 437 and has been released on bail but is apprehending an arrest in the event of the case being committed to the Court of Session. Once a person is arrested of an accusation of having committed a non-bailable offence and is thereafter released on bail, by a Magistrate in exercise of his power Under Section 437, the expression 'any person has reason to believe that he may be arrested' used in Section 438(1) will not apply to such a situation merely because he may be taken into custody on being committed. In a.. recent decision of the Andhra Pradesh High Court in the case of Smt. Sheik Khasim Bi v. The State, 1986 Crl, L J 1303, a Full Bench of Andhra Pradesh High Court has taken the same view as the Madhya Pradesh High Court while interpreting the scope and effect of Section 438 Cr. P. C The learned Judges of the Andhra Pradesh High Court referred to the decision of the Supreme Court in Gurbaksh Singh Sibbia etc. v. The State of Punjab, AIR 1980 S. C. 1632, where the Supreme Court was considering as to the conditions on which an order Under Section 438 can be passed. We fail to understand how the said decision is of any assistance to consider whether after an accused is arrested and then released on bail in exercise of powers Under Section 437 or 439 of the Code, whether Section 438 can again be invoked apprehending that he may be taken into custody on the case being committed to the Court of Session. The learned Judges of the Andhra Pradesh High Court relied upon the Division Bench decision of the Madhya Pradesh High Court as well as another Bench decision of the Punjab High Court in the case of Puran Singh v. Ajit Singh, 1985 Crl. L. J. 897, and came to hold that filing of a charge-sheet by the police and issuing warrant by a Magistrate do not put and end to the power to grant bail Under Section 438(1) Cr. P. C. It was further held that the Court of Session and the High Court has power to grant anticipatory bail Under Section 438(1) to a person after the criminal Court has taken cognisance of the case and has issued process viz, warrant of arrest of that accused person. We are in respectful disagreement with the aforesaid view of the Andhra Pradesh High. Court. Section 438 of the Code which was engrafted into the statute with a particular purpose and not to be made applicable in all contingencies where the normal criminal Courts have already released the accused on bail by invoking their jurisdiction either Under Section 437 or Under Section 439. As has been stated by the Supreme Court in some of the cases to which we will refer later it applies at a stage prior to arrest when the person apprehends his arrest on being accused of committing a non- bailable offence. Once the person concerned is arrested or appears before the Court and the Court is in seisin over the matter and is then released on bail, the subsequent apprehension of his further arrest in the event of the matter being committed to the Court of Session, will not attract the operation of Section 438 of the Code. The-scope and effect of Section 438 of the Code of Criminal Procedure came up for consideration before this Court in the case of 1985(1) OLR 90 Mohan Behera and two others v. State, 59(1985) CLT 110. Our learned brother Justice Behera has elaborately discussed this matter and has taken into consideration the Bench decision of Madhya Pradesh High Coutt to which we have already referred and disagreeing with the' view expressed by the Madhya Pradesh High Court held that Section 438 of the Code deals with the grant of anticipatory bail which means bail in anticipation of arrest and this 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. In the aforesaid Orissa Case, our learned brother has referred the observation of the Supreme Court in Gurbaksh Singh case reported in 1980 S. C. 1632 where the Supreme Court held:
'...The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is there- fore effective at the very moment of arrest...'
(underlining is ours)
In our view the aforesaid decision of this Court in Mohan Behera case lays 1985(I) OLR 90 down the correct position of law so far as the stage at which Section 438 of the Code can be made applicable. The provision of Section 438 came up for consideration before a Bench of Gauhati High Court in Stats of Assam v. Mobark Ali and others, 1982 Crl. L. J 1816, and it was held :
'The term 'appears' in Section 437 means and includes voluntary appearance before the Court without intervention of any agency and the act of surrender before the Court coupled with submission to its direction. These are implicit in Section 437. As such, when a person accused of a non-bailable offence voluntarily appears before the Court and remains in physical control of the Court and prays for bail, the Magistrate is empowered to grant bail to him if he is so entitled. Such a bail not being asked for in apprehension of arrest, it cannot be said that the Magistrate exercises the powers Under Section 438 which are not vested in him. The granting of bail by the Magistrate in such circumstances is well within the scope of Section 437.'
In another decision of this Court in the case of Sri Shramar alias Bhramarbar Mohspatra and Anr. v. State of Qriasa, 51(1981) CLT 391, another single Judge of this Court also examined the scope of Section 438 and held that the said provision can be attracted Only when the accused is apprehending arrest and does not take within its sweep the case of an accused against whom the criminal Court has already issueed process by taking cognisance of the offence. The Supreme Court also considered the scope and .effect of Section 438 of the Code vis-a-vis Rule 184 of the Defence of India Rules. In Balchand Jain v. State of Madhya Pradesh, AIR 1977 S. C 366, the Supreme Court has held :
'...Now Section 438 contemplates an application to be made by a person who apprehends that he may be arrested on an accusation of having committed a non-bailable offence. It is an application on an apprehension of arrest that invites the exercise of the power Under Section 438. And on such an application, the direction that may be given Under Section 438 is that in the event of his arrest, the applicant shall be released on bail. Rule 184 on the other hand deals with a different situation and operates at a subsequent stage when a person is accused or convicted of contravention of any rule or order made under the Rules and is in custody. It is only the release of such a person en bail that is conditionally prohibitedd by Rule 184. If a person is not in custody but is merely under an apprehension of arrest and he applies for grant of 'anticipatory bail' Under Section 438, his case would clearly be outside the mischief of rule 184 because when the Court makes an order for grant of 'anticipatory bail' it would not be directing release of a person who is in custody. It is an application for release of a person in custody that is contemplated by rule 184 and not an application for grant of 'anticipatory bail' by a person apprenending arrest. Section 438 and Rule 184 thus operate at different stages, one prior to arrest and the other after arrest and there is no overlapping between these two provisions so as to give rise to a conflict between them......'
The aforesaid observations would equally apply to a case when an accused if released on bail Under Section 437 or 439 of the Code and, therefore, to such a case Section 438 cannot be made applicable again merely because the accused may be re-arrested or taken into custody on being committed to the Court of session. A lealrned single judge of Rajasthan High Court also considered the scope and effect of Section 438 in the case of Rewat Dan and Ors. v. State of Rajasthan, 1975 Crl. L J. 651, and held :
'Section 438 no doubt authorises the High Court and the Court of Session to grant bail in anticipation of arrest upon an application made by a person who has reason to believe that he may be arrested, but the High Court has no power to direct the committing Magistrate that in the event of committing the case to the Court of Session, if the accused person is not in custody, he shall take bail from him for appearance before the Court of session.
Such a direction if given will amount to taking away the discretion of power given to him under clause (b) of Section 209 of the Code.'
(Quoted from the head-notes)
In our opinion, therefore, an order Under Section 438 of the Criminal Procedure Code can be passed before the arrest of the applicant. It is the imminent likelihood of arrest, founded on a reasonable belief on being accused of commission of a non-bailable offence which gives the jurisdiction to the Court of Session and High Court to grant anticipatory bail Under Section 438 of the Code and an accused can invoke the jurisdiction of the Court Under Section 438 so long he has not been arrested. The provisions of Section 438 cannot be invoked after the arrest of the accused since in such an event the accused must seek his remedy either Under Section 437 or 439 of the Code. In that view of the matter, an application Under Section 438 will not be maintainable at the stage of passing of commitment order Under Section 209 or under the apprehension that the case may be committed to the Court of session. The learned Sessions Judge, therefore, was in error in invoking his jurisdiction Under Section 438 of the Code since the accused in the present case were released on bail by the learned Magistrate on 18-2-1980 and they had invoked the jurisdiction of the Sessions judge apprehending that the case may be committed to the Court of session. We are in respectful disagreement with the view taken by the Madhya Pradesh High Court and Andhra Pradesh High Court in the two cases earlier referred to by us and follow the decision of our learned brother Justice Behera in Mohan Behera case referred to (supra).
Though the impugned order of the learned Sessions Judge becomes vulnerable in view of the position of law stated by us earlier, but we are not inclined to interfere with the said order and to cancel the bail of the opposite parties since we find that more than six years have elapsed in the meantime and there is no adverse report against any of the opposite parties nor any allegation of high-handedness though they are free at large for the last six years. Cancellation of the impugned order in the facts and circumstances of the present case, would cause miscarriage of justice and accordingly we decline to interfere with the same.
5. In the ultimate result, therefore, the criminal revision is dismissed.
L. Rath, J.
I agree.