G.C. De, J.
1. This Special Bench has been constituted to answer the following common questions raised in all these pending applications:
'Whether an application for anticipatory bail under Section 438 of the Code of Criminal Procedure is at all maintainable at post cognizance stage of a case instituted on police report or complaint after the Court issued process like warrant of arrest for production of a person of having committed a non-bailable offence?'-- this Special Bench was constituted.'
2. In all the present applications, a prayer was made for anticipatory bail either after filing of the charge-sheet or after issuance of warrant of arrest by the Court in a particular proceeding or after process was issued by the Court after taking cognizance in complaint cases.
3. Such a question came up for consideration before a Division Bench of this Court in Sk. Alim and Ors. v. The State of West Bengal reported in 1993 C Cr. LR (Cal) 137 in which Their Lordships, referring to a decision of five Judges Bench of the Apex Court in Gurbux Singh v. State of Punjab reported in AIR 1980 SC 1632 held, inter alia, that prayer for anticipatory bail cannot be disallowed on the ground of submission of charge-sheet because it is not possible to import anything which is not in the section as thereby the liberty of a person may be jeopardized. It was also observed that such a course might be vulnerable constitutionally as indicated in Gurbux Singh's case (supra).
4. Thereafter another Division Bench of this Court in 1995 C.Cr. LR (Cal) 244 (Sri Pankaj Lochan Sahoo and Anr.) took the similar view and came to a conclusion that Section 438 of the Code can be invoked when any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, and it is immaterial whether such accusation is made because a case started by police or during an investigation initiated by police or the same has been made in a complaint filed before a Magistrate under Section 200 of the Code. Accordingly, it was concluded-
'........ So, it is clear that whenever any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may pray for anticipatory bail under Section 438 Cr.PC. It would be going against the law to say that such a remedy is available only in a police case. In view of the above legal position, we are of the view that such an application under Section 438 Cr.PC is maintainable in connection with the complaint case where there is an accusation that the petitioner has committed a non-bailable offence.......'
5. But the same question again came up for consideration before another Division Bench of this Court in Bimal Adak and Ors. v. State, reported in 1997 C.Cr. LR (Cal) 72 and a view was taken that the right of the petitioner to move for anticipatory bail comes to an end after submission of charge-sheet. In the said judgment, the Division Bench without referring the matter to a Special Bench, in view of the contrary decision given by earlier Division Benches of co-ordinate jurisdiction, relied upon the three Judges' Bench decision of the Apex Court in Salauddin Abdul Samad Sheikh v. State of Maharashtra reported in 1996 SCC (Cri) 198, and ultimately concluded that the petition for anticipatory bail was not maintainable after the filing of the charge-sheet.
6. Since there were diverse views expressed by the Division Benches of this Court, the question ultimately referred to the Special Bench for consideration.
7. Mr. Dilip Dutta, Mr. S.S. Roy and Mr. Milan Mukherjee appearing on behalf of some of the petitioners citing different case laws made separate arguments in support of the contention that the above question is to be answered in the affirmative. On the other hand, Mr. Subhasish Ray, Mr. Sudipto Moitra, Additional Public Prosecutor and Mr. Kazi Safiullah, Public Prosecutor separately appearing on behalf of some of the O.P.s as well as of the State analysing different provisions of the Code of Criminal Procedure, as well as the decision of different High Court and the Apex Court contended that such an application for anticipatory bail under Section 438 of the Code is not maintainable at post cognizance stage of a case instituted on police report or in a complaint case after the Court issued process like warrant of arrest in a non-bailable offence.
8. Before entering into details, we deem it proper to reproduce Section 438 of the Cr.PC:
'438. Direction for grant of bail to person apprehending arrest-
(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court of the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
(2) When the High Court or the Court of Session makes a direction under Sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-
(i) a condition that the person shall make himself available for interrogation by a Police Officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police Officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under Sub-section (3) of Section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an Officer-in-Charge of a Police Station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such Officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-section (1).'
9. In West Bengal, the original Sub-section (1) of Section 438 of the Cr.PC was substituted as hereunder by the West Bengal Act XXV of 1990:
After Sub-section (1), insert the following:--
(1)(a) when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest, he shall be released on bail;
Provided that the mere fact that a person has applied to the High Court or the Court of Session for a direction under this section shall not, in the absence of any order by that Court, be a bar to the apprehension of such person, or the detention of such person in custody, by an Officer-in-Charge of a Police Station. (b) The High Court or the Court of Session, as the case may be shall dispose of an application for a direction under this sub-section within thirty days of the date of such application;
Provided that where the apprehended accusation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less seven years, no final order shall be made on such application without giving the State not less than seven days notice to present its case. (c) If any person is arrested and detained in custody by an Officer-in-Charge of a Police Station before the disposal of the application of such person for a direction under this sub-section, the release of such person on bail by a Court having jurisdiction, pending such disposal, shall be subject to the provisions of Section 437.
(1A) The provision of Sub-section (1) shall have effect notwithstanding anything to the contrary contained elsewhere in this Act or in any judgment, decree or order of any Court, Tribunal or other Authority.'
10. In this connection it would be pertinent to mention that there was no provision relating to anticipatory bail in the Code earlier and it was introduced for the first time in the present Code of 1973 which came into force with effect from 1.4.1974 on the suggestion made in the 41st Report of Law Commission dated September 25, 1969 and the Joint Committee Report, the reason being'... where there are reasonable grounds for holding that a person accused of an offence in not likely to abscond or otherwise misuse his liberty while on bail there seems no justification to require him to send to custody and remain in prison for some days and then apply for bail'. The codification of Section 438 was found necessary in view of the conilicting judicial decisions about the power of Court to grant anticipatory bail. The necessity for granting anticipatory bail arises mainly because sometimes influential persons trying to implicate their rivals in false cases for the purpose of getting them detained in jail for some days.
11. The Law Commission in paragraph 31 of its 48th Report (1972) further recommended that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, final order should be made only after notice to the Public Prosecutor and the initial order should only be an interim order. It is to be noted that while drafting Section 438 of the Code, the Legislator kept in their view the recommendations made by the Law Commission.
12. In Kartar Singh v. State of Punjab reported in a Five Judges' Bench of the Apex Court also considered the constitutional aspect of Section 438 of the Code and came to a finding that in Gurbax Singh's case (supra) there is no specific statement that the removal of Section 438 at any time will amount to violation of Article 21 of the Constitution of India. In the case of Kartar Singh (supra) the Apex Court while considering the constitutionality of exclusion of benefit of Section 438 of the Cr.PC from the Terrorist & Disruptive Activities (Prevention) Act, 1987 and the legislative competence of the State of Uttar Pradesh to delete the provisions of Section 438 of the Code by Criminal Procedure Code (UP) Amendment Act, 1976, took the view that Section 438 Cr.PC is a new provision incorporated in the present Code creating new right and that if that new right is taken away it cannot be said that the removal of Section 438 is violative of Article 21 of the Constitution of India.
13. A similar view was taken by the Apex Court in State of Madhya Pradesh and Anr. v. Ram Krishna Balothia and Anr., reported in : 1995CriLJ2076 while considering the non- applicability of the provision for anticipatory bail under Section 438 Cr.PC in respect of the offence under the Scheduled Caste and Scheduled Tribes Atrocities (Prevention of Atrocities) Act, 1989. Their Lordships in paragraph 7 of this judgment took the view: '..... Article 21 enshrines the right to live with human dignity, a precious right to which every human being is entitled; those who have been for centuries, denied this right, more so. We find it difficult to accept the contention that Section 438 of the Cr.PC is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Criminal Procedure Code. The Law Commission in its 41st Report recommended introduction of a provision of grant of anticipatory bail. It observed:
'We agree that this would be a useful advantage. Though we must add that it in every exceptional cases that such power should be exercised.'
14. In the light of this recommendation, Section 438 was incorporated, for the first time, in the Criminal Procedure Code of 1973. Looking to the cautious recommendation of the Law Commission, the power to grant anticipatory bail is conferred only on a Court of session of the High Court. Also anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Article 21 of the Constitution. And its non-application to a certain special category of offences cannot be considered as violative of Article 21.'
15. In Kartar Singh (supra) it was also viewed by the Apex Court that the State Legislature is competent to amend The Central Act. Similarly the amendment of the Code at different States and in respect of different Acts were considered to be within the legislative competency of those States.
16. The Apex Court consistently took the view that consideration for grant of anticipatory bail are different from consideration for post arrest bail. In Pokar Ram v. State of Rajasthan : 1985CriLJ1175 , in States v. Anit Sharma : 1997CriLJ4414 in State v. Bimal Krishna Kundu and Anr. : 1997CriLJ4056 and finally in Dukshiyan Benumpani v. Arun Kumar Bajona : 1998CriLJ841 , the question of anticipatory bail in respect of different cases was examined and view taken is that the consideration to be weighed while dealing with the prayer of pre-arrest bail order are materially different from post arrest bail application. In Dukshiyan Benumpani's case (supra) it was also viewed that Court should not monitor the investigation process unless such investigation transgresses any provision of law.
17. The distinction between an ordinary bail and anticipatory bail has been clearly indicated by the Apex Court in the case of Gur Baksh Singh (supra). In Bimal Krishna Kundu's case (supra), the Apex Court further viewed that provisions of Section 438 applied to all non-bailable offence and is not confined to offences triable exclusively by the Court of Sessions.
18. The first notable case came up for consideration before the Apex Court is the case of Bal Chand Jain v. State of Uttar Pradesh reported in : [1977]2SCR52 in which it was viewed that the term 'anticipatory bail' is really a misnomer because what Section 438 contemplates is not an anticipatory bail but merely an order directing releases of accused on bail in the event of his arrest and therefore, it is manifest that there is no question of bail unless the person is arrested in connection with any non-bailable offence by the police. In Gur Baksh Singh's case (supra) also it has been observed that ordinary bail is granted after the arrest whereas anticipatory bail is granted in anticipation at arrest and is, therefore, effective at the very moment of arrest.
19. In Bal Chand Jain's case (supra) the Apex Court initially took the view that granting of such anticipatory bail is somewhat extraordinary in character and it is only in exceptional cases where it appears that a person might be falsely implicated or a frivolous case might be launched against him, or there are reasonable grounds for holding a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail such power is to be exercised. It is also viewed that this power being rather of an unusual nature, it is entrusted only to the higher echelons of the judiciary. It is a power exercisable in case of an anticipated accusation of non-bailable offence and there is no limitation as to the category of non-bailable offence in respect of which the power can be exercised. Of course, the view taken by the Apex Court in Bal Chand Jain's case (supra) as regards making out special case before granting an anticipatory bail was not approved by the Larger Bench of the Apex Court in Gur Baksh Singh's case (supra) and it was viewed that the applicant has undoubtedly to make out the case for anticipatory bail and no one can go further and say that he must make out a special case.
20. It has been argued on behalf of Mr. Dutta, Mr. Roy and Mr. Mukherjee that in Gur Baksh Singh's case (supra) the question posed before this Special Bench was never directly answered and as such, there is necessity to examine the question threadbare.
21. The question posed before this Special Bench has three parts:
(i) Whether in a case instituted upon a complaint and warrant of arrest issued after taking cognizance, an application under Section 438 of the Code is maintainable or not?
(ii) Whether any case being investigated by the police, an application under Section 438 of the Code would be maintainable after warrant of arrest has been issued during investigation?
(iii) Whether an application under Section 438 of the Code would be maintainable after charge-sheet has been submitted and warrant of arrest has been issued?
22. In paragraph 12 of Gur Baksh Singh's case (supra) it was viewed:
'Clause (1) of Section 438 is couched in terms, broad and unqualified. By any known canon of construction, words of width and amplitude ought not generally to be cut down so as to read into the language of the statute restraints and conditions which the legislature itself did not think it proper or necessary to impose. This is especially true when the statutory provision which falls for consideration is designed to secure a valuable right like the right to personal freedom and involves the application of a presumption as salutary and deep-granted in our Criminal Jurisprudence as the presumption of innocence. Though the right to apply for anticipatory bail was conferred for the first time by Section 438, while enacting that provision the legislature was not writing on a clean slate in the sense of taking an unprecedented step, in so far as the right to apply for bail is concerned. It had before it two cognate provisions of the Code: Section 437 which deals with the power of Courts other than the Court of Session and the High Court to grant bail in non-bailable cases and Section 439 which deals with the 'special powers' of the High Court and the Court Session regarding bail. The whole of Section 437 is riddled and hedged in by restrictions on the power of certain Courts to grant bail.
The provisions of Sections 437 and 439 furnished a convenient model for the legislature to copy while enacting Section 438. If it has not done so and has departed from a pattern which could easily be adopted with the necessary modifications, it would be wrong to refuse to give to the departure its full effect by assuming that it was not intended to serve any particular or specific purpose. The departure, in our opinion, was made advisedly and purposefully: Advisedly, at least in part, because of the 41st Report of the Law Commission which, while pointing out the necessity of introducing a provision in the Code enabling the High Court and the Court of Session to grant anticipatory bail, said in para 39.9 that it had 'considered carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted but had come to the conclusion that the question of granting such bail should be left 'to the discretion of the Court' and ought not to be fettered by the statutory provision itself, since the discretion was being conferred upon Superior Courts which were expected to exercise it judicially. The legislature conferred a wide discretion on the High Court and the Court of Session to grant anticipatory bail because it evidently felt, firstly, that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted and secondly, because the intention was to allow the higher Courts in the echelon a somewhat free hand in the grant of relief in the nature of anticipatory bail. That is why, departing from the terms of Sections 437 and 439, Section 438(1) uses the language that the High Court or the Court of Session 'may, if it thinks fit' direct that the applicant be released on bail. Sub-section (2) of Section 438 is a further and clearer manifestation of the same legislative intent to confer a wide discretionary power to grant anticipatory bail. It provides that the High Court or the Court of Session, while issuing a direction for the grant of anticipatory bail, 'may include such conditions in such directions in the light of the facts of the particular case, as it may think fit:, including the conditions which are set out in Clauses (i) to (iv) of Sub-section (2). The proof of legislative intent can best be found in the language which the legislature uses. Ambiguities can undoubtedly be resolved by resort to extraneous aids but words, as wide and explicit as have been used in Section 438, must be given their full effect, especially when to refuse to do so will result in undue impairment of the freedom of the individual and the presumption of innocence. It has to be borne in mind that anticipatory bail is sought when there is a mere apprehension of arrest on the accusation that the applicant has committed a non-bailable offence. A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which it is imperative to protect his freedom, in so far as one may, and to give full play to the presumption that he is innocent. In fact, the stage at which anticipatory bail is generally sought brings about its striking dissimilarity with the situation in which a person who is arrested for the commission of a non-bailable offence asks for bail. In the latter situation, adequate data is available to the Court, or can be called for by it, in the light of which it can grant or refuse relief and while granting it, modify it by the imposition of all or any of the conditions mentioned in Section 437.'
23. In paragraph 13 of the said judgment, the Apex Court also observed:
'This is not to say that anticipatory bail if granted, must be granted without the imposition of any conditions. That will be plainly contrary to the very terms of Section 438. Though Sub-section (1) of that section says that the Court 'may, if it thinks fit' issue the necessary direction for bail, Sub-section (2) confers on the Court the power to include such conditions in the direction as it may think fit in the light of the facts of the particular case, including the conditions mentioned in Clauses (i) to (iv) of that sub-section. The controversy therefore is not whether the Court has the power to impose conditions while granting anticipatory bail. It clearly and expressly has that power. The true question is whether by a process of construction, the amplitude of judicial discretion which is given to the High Court and the Court of Session, to impose such conditions as they may think fit while granting anticipatory bail, should be cut down by reading into the statute conditions which are not to be found therein, like those evolved by the High Court or canvassed by the learned Additional Solicitor General our answer clearly and emphatically, is in the negative. The High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant. Similarly, they must be left free to refuse bail if the circumstances of the case so warrant, on considerations similar to those mentioned in Section 437 or which are generally considered to be relevant under Section 439 of the Code.'
24. In paragraph 14 of Gur Baksh Singh's case (supra). Their Lordships observed:
'Generalisations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are alike on facts and therefore, Courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. There is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly, these are higher Courts manned by experienced persons, secondly, their orders are not final but are open to appellate or revisional scrutiny and above all because, discretion has always to be exercised by Courts judicially and not according to whim, caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges. Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges.'
In paragraph 15 of the said judgment. Their Lordships further observed:
'Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out their decisions. And it will be strange if, by employing judicial artifices and techniques, we cut down the discretion so wisely conferred upon the Courts, by devising a formula which will confine the power to grant anticipatory bail within a strait-jacket. While laying down cast iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even Judges can have but an imperfect awareness of the needs of new situations. Life is never static and very situation has to be assessed in the content of the emerging concerns as and when it arisen. Therefore, even if we were to frame a 'Code for the grant of anticipatory bail' which really is the business of the legislature, it can at best furnish broad guidelines and cannot compel blind adherence. In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion. But apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question to the discretion of the Court, by providing that it may grant ball 'if it thinks fit'. The concern of the Courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion conferred upon the Courts by law.'
26. Mr. Dutta, Mr. Roy and Mr. Mukherjee accordingly tried to argue that the entire question posed before this Special Bench is required to be viewed on the basis of settled principle of law as was enunciated by the Apex Court and other High Courts from time to time.
27. Of course, Mr. Moitra, Mr. Safiullah and Mr. Subasish appearing on behalf of the opposite parties and also on behalf of the State however, tried to argue that in Gur Baksh Singh's case (supra) the Apex Court has already given a final verdict on the question posed before this Special Bench. In support, of this submission the first paragraph of the judgment was pointed out which is as follows:
'These appeals of Special Leave involve a question of great public importance bearing, at once, on personal liberty and the investigational powers of the police. The society has a vital stake in both of these interests, through their relative importance at any given time depends upon the complexion and restraints of political conditions. Our task in these appeals is how best to balance these interests while determining the scope of Section 438 of the Cr.PC, 1973 (Act No. II of 1974).'
28. It was argued on behalf of the opposite parties, and also on behalf of the State that in respect of a complaint case a Court of competent jurisdiction after taking cognizance of the offence issues summons or warrant of arrest depending upon the nature of the case and as such, it is not possible nor permissible to get a reply on the question posed before this Special Bench in Gurbaksh Singh's case (supra). It is also argued that the salutary principle of law which had been followed by the Courts from time to time that a decision is not an authority for the proposition that may logically follow from it. Referring to a decision of the Apex Court reported in : (1970)ILLJ662SC (State of Orissa v. Sudhansu Sekhar Misra and Ors.) which was followed by a Bench of this Court in the case of Godrej Soap v. State reported in 1990 Calcutta Criminal Law Reported (Cal) 56, it is argued that the principle is a salutary one and peremptorily based on the time honoured practice of ratio decidendi. Both the principles read together make it abundantly clear that what is interrable from a reading of the judgment is not its ratio or binding upon the subordinate Court, but the law explained or the law enunciated is the essential feature of a judgment. Accordingly, it has been argued that the ratio decidendi in Gubaksh Singh's case does not speak anything in affirmation of the question posed before this Special Bench.
29. It is also argued on behalf of the State that conceptually law of anticipatory bail is a law of conversion from non-bailability of offence to bailability and when such conversion takes place by the order of a Court under Section 438 of the Code, it overrides the non-bailability of the offence as mentioned in the schedule appended to the Code or as engrafted in the provision of any special or local law. There are modalities for effecting such conversion from non-bailability to bailability. It is argued that in respect of a case is pending investigation modalities are to call for the records of the investigation which are differently named at different States like case diary in West Bengal and special diary in some other States. On perusal of such case diaries the Court comes to a conclusion whether to grant or not to grant anticipatory bail when applied for. But if the provision of anticipatory bail applies in respect of a complaint case wherein warrant of arrest has been issued against the accused, it would not be possible on the part of the Court to follow some modality to consider the justifiability of the prayer by production of case diary or special diary as is done in the case of investigation by the police.
30. It is clarified that the expression 'complaint case' contextually would mean a proceeding in which Court of competent jurisdiction has taken cognizance of the offence on the basis of a complaint filed before the Court under Chapter XI of the Code and the Court proceeds to exercise its power under the subsequent chapter namely Chapter XVI and onwards or proceeding initiated before any Court under any special or local law whether such Court takes cognizance of a complaint as defined under Section 2(d) of the Code. Once the Court takes cognizance of the case, it has a statutory authority to examine witnesses for the purpose of finding out whether a case is made out for issuance of process. At that stage Court acting under Section 438 Cr.PC cannot by any stretch of imagination be said to be in a position to anticipate the order of the Court likely to be passed at the stage of Section 204 of the Code, since that stage it would not be clear or ascertainable as to whether Court will issue summons for appearance of the persons concerned or issue warrant of arrest for his apprehension and subsequent production in Court. Then again, Court under Section 438 of the Code cannot proceed with the presumption that a warrant of arrest will invariably be issued if the Magistrate takes cognizance of the offence because even after taking cognizance of the offence the Court acting on complaint can very well dismiss the complaint in exercise of its power under Section 203 of the Code. So it is argued that where uncertainty prevails in the exercise of power by a Court in one way or the other, question of grant of any relief in the form of anticipatory bail cannot be construed to be logical one.
31. It is further argued that commencement of judicial proceeding before the competent Court of law on the basis of a complaint does not come within the area of power exercised either by the High Court or by the Court of Sessions acting under Section 438 of the Code. The procedural structure under the Code of Criminal Procedure is essentially a three tier system described as Original, Appellate and Revisional jurisdiction. Added to it, the High Court has inherent power under Section 482 of the Code which is really an authority or jurisdiction derived from the Letters Patent Act. High Court or Court of Session acts as Court of original jurisdiction under Section 438 of the Code and hence, acting under this jurisdiction the High Court is debarred as the nature of power itself suggests, to exercise its appellate or revisional power in respect of the judicial proceeding or in respect of an order passed in course of a judicial proceeding. So it is submitted that structurally speaking application for grant of anticipatory bail in a complaint case is not possible.
32. It is also argued on behalf of the State that once a Magistrate takes cognizance on a complaint Sub-section (1) of Section 438 of the Code ceases to have any application. Functionaries under Section 438 Cr.PC are the High Court, Court of Sessions, Officer-in-Charge of a Police Station and the Magistrate under Section 438(3) of the Code of Criminal Procedure. Words employed in Section 438(3) of Cr.PC make it abundantly clear that the Magistrate who takes cognizance of the offence must synchronize issuance of warrant of arrest in conformity with the order of anticipatory bail previously granted by any of the Courts under Sub-section (1) of Section 438 Cr.PC. The Magistrate mentioned in Sub-section (3) of Section 438 Cr.PC can never be a Magistrate dealing with a complaint case. It can only be a Magistrate who deals with the case which comes before him at the end of investigation by police. It is argued that no Court whether it is High Court or Court of Sessions despite being endowed with knowledge and experience ever pass an order of anticipatory bail in respect of an offence which had been taken cognizance of on complaint by a Magistrate. The issuance of bailable warrant of arrest by the Magistrate in conformity with an order passed under Sub-section (1) of Section 438 Cr.PC as the plain language of section indicates, is a pre-cognizance grant of anticipatory bail. Once a Magistrate takes cognizance on complaint Sub-section (1) ceases to have any application. It has been emphasised that the entire edifies of Section 438 of the Code is founded on a relief against detention during investigation and in the event of a person having not arrested during the investigation there is an assurance of sustenance of liberty under Sub-section (3) of Section 438 of the Code even after the Court has taken cognizance of the offence. Section 438 of the Code does not prevent arrest it only prevents detention subsequent to the arrest whether it is during investigation or after taking cognizance. But the Magistrate taking cognizance must be one who takes cognizance on police report and not on complaint. So structurally it is not possible to hold that in a complaint case provision under Section 438 of the Code applies.
33. The next dimension of argument on behalf of the State is that in Gurbaksh Singh's case (supra) it is clarified that starting point of Section 438 is reasonable belief of a person concerned that he may be arrested on the accusation of having committed a non-bailable offence. 'Accusation' as the meaning of the word imports and is understood in legal parlance is different from 'statement effect' presented to a Court on the form of substantive evidence. Once Magistrate takes cognizance under Section 190(1)(a) of the Code he takes cognizance 'upon receiving a complaint of facts which constitute such offence'. The expression 'complaint of facts' has wider connotation and stands at higher spectrum than mere 'accusation'. By no means the expression 'accusation' in Section 438 of the Code can be equated with 'complaint of facts which constitute such offence'. So it is argued that magisterial satisfaction based on complaint of facts constituting offence cannot be termed as 'accusation' and as such accusation does not remain in the helm of even prima facie, tangible facts. Section 190(1)(a) read with Section 200 of the Code, which is necessary concomitant, unless the complainant is a public servant, in all complaint proceedings where Magistrate takes cognizance on complaint of facts and get the facts prima facie verified by evidence of the complainant and his witnesses, if any, under Section 200 of the Code substantive tangible material comes before Court which in fact and in law is much more than 'accusation'. So it is argued that once material on the basis whereof reasonable belief to the formed by the person asking for anticipatory bail is beyond the province of 'accusation', the relief of anticipatory bail is not available to that person concerned. His reason to believe or reasonable belief must be and can only be based on accusation and not on substantive evidence adduced in Court.
34. It is also argued on behalf of the State that the Code or Criminal Procedure itself indicates that order must be passed in accordance with the procedure that has been prescribed and not otherwise. So when a warrant of arrest is issued by a Magistrate or any other Court, the Superior Court can interfere with the execution of such process namely warrant of arrest in the manner suggested in the Code and not with the aid of Section 438 of the Code. It is argued that a remedy specifically provided by law of a procedure prescribed, implledly debars the application of any other remedy or procedure. Hence the stage of Section 438 Cr.PC being the stage of suspicion of arrest founded on reasonable belief of the person concerned cannot be equated with a specific case in which a process has been issued by a competent Court after being satisfied about the prima facie case under Section 204 of the Code. So it argued that the expression 'in the event of such arrest' in Sub-section (1) 'if a Magistrate taking cognizance' in Sub-section (3) clinches the issue. Law under Section 438 of the Code thus projects the situation where certainty in taking place of event is not a sine qua non but a protection is aforesaid in anticipation of an incident which may or may not take place. Once the stage of certainty arises in the arrest of a person, he might have a remedy elsewhere under the Code, but Section 438 of the Code ceases to have its applicability.
35. So placing reliance on Ram Krishna Balothia's case (supra), it is argued that the right under Section 438 of the Code is not integral part of Article 21 of the Constitution of India. It is merely a statutory right and such right is required to be exercised in accordance with the procedure prescribed by the law. Once a competent Court issued warrant of arrest under Section 204 of the Code as an immediate consequence thereof various provisions of chapter VI of the Code are brought into operation, specially Section 70--Sub-section (2) as regards remaining of operation of warrant of arrest in force until it is cancelled by the Court which issued it or until it is executed. So under Section 438 of the Code, such a warrant of arrest cannot be cancelled or recalled either by the High Court or the Court of Sessions and that can only be done by other provisions of law.
36. Similarly, the provision of Section 76 read with Section 209 of the Code if read with other sections under Chapter VI of the Code namely 70, 74, 75 and 77, It will be indicative of the position in law that the legislatures never intended to impede the continuous flow of judicial process and the administrative/executive assistance furnished to a Court for the proper continuation of a judicial proceeding i.e. in case where warrant of arrest is issued in such proceeding. These provisions of law are explicitly suggestion of harmonisation of the course of progress of a proceeding in Court with active participation of State regulated agency and it is immaterial whether such Court proceeding is instituted by the State or by an individual. So it has been concluded that the question posed before this Special Bench is to be answered in the negative.
37. It appears from the submissions of the learned counsels of both sides that they have argued at length analysing the scope as well as the principle of applicability of the provisions of Section 438 of the Code in general. But we are required to consider a case in which the process has been issued after taking cognizance in a case either instituted by police or on the basis of complaint. It is rightly argued on behalf of the petitioners before this Special Bench that in Gurbaksh Singh's case (supra) this question has not been dealt with. It has already been indicated that two Division Benches of this Court while took the view that an application under Section 438 of the Code is maintainable even after the filing of charge-sheet, the third Division Bench took a view on the basis of Salauddin Abdul Samad's case (supra) that such an application is not entertainable after the submission of charge-sheet. But in K.L. Verma v. State reported in 1997 C.Cr. LR (SC) 88, the Apex Court referring to Salauddin's case explained and observed that this decision was intended to convey that as soon as the accused persons are produced before the regular Court the anticipatory bail ends even if the Court is yet to decide the question of bail on merits. In K.L. Verma's case the Apex Court observed that the anticipatory bail will ensure till decision by the regular Court on the question of grant of bail and for a week thereafter, so that in the eventuality of refusal of bail by the regular Court the accused, if so advised could move the higher Court. In fact, the Apex Court took a view that till the regular bail application is disposed of one way or the other, the Court may allow the accused to remain on anticipatory bail.
38. A Full Bench of Andhra Pradesh High Court in Sheikh Khasim Bi v. State reported in 1986 Cr.LJ 1303 (AP) has held by overruling two of its earlier decisions, that the filing of charge-sheet by police and issuance of warrant by Magistrate, do not take away the power to grant anticipatory bail under Section 438. A similar view was taken by the Full Bench of Madhya Pradesh High Court in Nirbhay Singh v. State reported in 1995 Cr.LJ 3317 (MP) and viewed that where an order of anticipatory bail is passed after issue of non-bailable warrant of arrest by a Magistrate the duty of the police officer entrusted with execution of the warrant would be to arrest the person and produce him before the Magistrate who thereupon shall deal with the accused as required by the order of anticipatory bail. In fact in both the cases, the view taken by the Division Bench of Punjab and Haryana High Court in Puran Singh v. Ajit Singh reported in 1985 Cr.LJ 897 (P&H;) were confirmed.
39. Accordingly, Mr. Dilip Dutta, Mr. S.S. Roy and Mr. Milan Mukherjee appearing on behalf of some of the petitioners concluded that an application under Section 438 of the Code of Criminal Procedure 1973 is maintainable even after a process has been issued in a complaint case and after charge-sheet has been filed in a case investigated by the police. So the learned counsels concluded that the question posed before this Special Bench is to be answered in affirmative.
40. It is to be noted that Section 438 of the Code does not indicate that an application under the said section is to be construed as an application for anticipatory bail. It is also to be noted that the Chapter XXXIII is titled 'provisions as to bail and bonds' and thereafter the sections are arranged with the following heading:
436. In what cases bail to be taken.
437. When bail may be taken, in case of non-bailable offence.
438. Direction for grant of bail to person apprehending arrest.
439. Special powers of High Courts or Court of Sessions regarding bail.
41. The subsequent sections in the said chapter from Section 440 to 450 deal with the nature of the bonds how those are to be accepted, how the persons are to be released on execution of such bonds and what actions are required to be taken against the sureties failing to produce the persons released on bonds and so on. So under Section 436 whenever any person other than a person accused of non-bailable offence is arrested or detained without warrant by an Officer-in-Charge of Police Station, or appears or is brought before a Court, and is prepared at any time while in the custody of such Officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail. Thus persons accused of a bailable offence or any other person who is not an accused, e.g. a person against whom a proceeding under Sections 107, 108, 109 and 110 has been started may be granted bail under Section 436.
42. Section 437, on the other hand, speaks of any person accused of, or suspected of, the commission of any non-bailable offence when he is arrested or detained without warrant by an Officer-in-Charge of a Police Station or appears or is brought before a Court, other than the High Court or Court of Session, he may be released on bail on fulfillment of certain conditions enumerated therein. Thus, Section 437 acknowledges the authority of any person to pray for bail whenever he is arrested or detained without warrant by an Officer-in-Charge of a Police Station or appears or is brought before a Court other than the High Court or Court of Session on the allegation of commission of any non-bailable offence, he may be released on bail on fulfillment of the conditions laid down in the said section. It is pertinent to mention that Section 437(1) of the Code opens with the words 'when any person accused of, or suspected of, the commission of any non-bailable offence'. So even if a person suspected of commission of any non-bailable offence is arrested or detained or appears or is brought before the Court, has the right to pray for bail or to be released on bail provided the other conditions of Section 437 are fulfilled. Thus under Section 437 an application for bail at a post-arrest stage is quite maintainable before any Court, other than the High Court or Court of Session.
43. It is interesting to note that Section 438 is the next section authorising the High Court or the Court of Session to grant bail to person apprehending arrest. So a person at a pre-arrest stage may pray for a direction under this section when he has reason to believe that he may be arrested of an accusation of having committed a non-bailable offence. The next Section 439 gives special powers to the High Court or to the Court of Session regarding bail. Thus Section 439(1) empowers the High Court or the Court of Session to release a person accused of an offence on bail. From this, it is clear that the High Court or the Court of Session may release a person on bail who is accused of a bailable or non-bailable offence at a post-arrest stage. It is to be noted that in respect of bailable offence if a person Is prepared at any time while in custody to give bail, such person shall be released on bail. If a Magistrate somehow does not grant bail to such person or if he cancels the bail under Section 436(2) of the Code, the High Court or the Court of Session can grant bail to such person under Section 439.
44. In Section 436 the words 'shall be released on bail' have been used indicating that as soon as a person in custody in respect of bailable offence is prepared to give bail, he shall be released on bail. But in Section 437 the words used in such cases of custody are 'may be released on bail', while in Section 439 the High Court or Court of Session may direct that such person in custody 'be released on bail'. In Section 438, however, the language used indicates that the High Court or the Court of Session 'may, if it thanks fit, direct that in the event of such arrest, the accused shall be released on bail'. So if the High Court or the Court of Session thinks it fit, it may direct the release of such detained person on bail. Of course, in West Bengal amendment indicated hereinabove, the words 'and that Court may, if it thinks fit', have been omitted. Thus in West Bengal, an opportunity has been given to any person when he 'has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest, he shall be released on bail'. So in the principal section the discretion was on the Court to pass an order under Section 436 'if it thinks fit'. But by the West Bengal amendment, deletion of these words practically empowers any person to apply to the High Court or the Court of Session for an order under Section 438 or in other words, in the original Section 438 a person could apply for bail under Section 438 and it was the Court before whom such an application is filed to consider whether it is a fit case for issuance of such a direction, but in West Bengal the right to file an application under Section 438 to the High Court or the Court of Session has been acknowledged. This Special Bench is considering the maintainability of such an application at post cognizance stage of a case. Practically there is nothing in Section 438(1) as amended in West Bengal which debars any person to file such an application. From this standpoint such an application before the High Court or a Court of Session is undoubtedly maintainable.
45. Of course, whether an order under Section 438 is to be passed or not is undoubtedly kept with the discretion of these Courts which are considered to be higher echelons of the judiciary as indicated in Balchand Jain's case (supra). This Bench is not required to consider as to what conditions are required to be fulfilled while passing an order under Section 438 of the Code. In several judgments of the Apex Court and different High Courts, it is already decided as to on what circumstances an order under Section 438 of the Code is to be passed. It is already indicated above that removal of Section 438 from the Code by any State or exclusion of the benefit of Section 438 in respect of different Acts were within the legislative competence and not violative of Article 21 of the Constitution of India. In West Bengal so long the right to apply before the High Court or the Court of Session under Section 438 is acknowledged by the amended West Bengal Act, 1990 (No. 25 of 1990) we fail to accept the argument of the opposite parties and the State that such an application is not maintainable after the filing of the charge-sheet or after the issuance of the process in a complaint case. When the statute has given the power to file an application under Section 438 that power cannot be taken away in the manner as argued on behalf of the opposite parties and the State.
46. As regards other aspects of maintainability of an application under Section 438 at a post cognizance stage, we like to point out that while passing an order under Section 438 the High Court or the Court of Session, wherever such an application is presented for consideration, is required to consider the application on merits, and in the order imposes conditions, in the light of the facts of a particular case, as may be thought fit and proper. In Section 438(2) it is further clarified that the conditions which could be imposed under Section 437(3) can also be imposed, 'as if the bail were granted under that section'. This particular aspect of the legislation is required to be taken into account while considering the maintainability of an application under Section 438 at a post cognizance stage. There is nothing in Section 438 authorising an applicant to get an order mandatorily. On the other hand, it is clarified by the Apex Court in several judgments that the passing of an order under Section 438 is entirely at the discretion of the Court where such an application is filed. So mere filing of an application under Section 438 neither can stall an investigation or inquiry nor it can stand on the way of a trial of a case after filing of the charge-sheet or after issuance of process under Section 204 or 209 of the Code.
47. The learned counsel for the opposite parties as well as the State argued at length pointing out that Sub-section (3) of Section 438 practically discloses the stage when an application under Section 438 is to be filed. Analysing the said sub-section, we do not find any such indication. The Sub-section (1) authorises the High Court or the Court of Session to pass an order of release on bail when there is apprehension of arrest on an accusation of having committed a non-bailable offence. If after taking into consideration the materials placed before the High Court or before the Court of Session, a direction is issued under Sub-section (1), conditions can be imposed in respect of the bail bond. Sub-section (3) has indicated that if a person is arrested after an order under Sub-section (1) is passed in respect of the self-same accusation and prepared to give bail as indicated in such order of Sub-section (1), he shall be released on bail. The second part of Sub-section (3) further clarification that if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-section (1). This also indicates that while the Magistrate is aware of the direction of the Court under Sub-section (1) in respect of an offence to which the Magistrate is competent to take cognizance, is required to issue a bailable warrant. Or in other words, if an order under Sub-section (1) is either made known to the arresting officer or to the Court, the Sub-section (3) authorises such officer or the Court to act appropriately in conformity with the direction Issued under Sub-section (1). There is nothing in Sub-section (3) which prohibits the High Court or the Court of Session or the arresting officer or the Magistrate taking cognizance limiting the scope and ambit of Section 438. The Sub-section (3) of Section 438 is merely a guideline as regards action to be taken by the arresting officer or the Magistrate in respect of an order passed under Sub-section (1). So it cannot be said that in view of the Sub-section (3), it is required to be concluded that an application under Section 438 is not maintainable.
48. In this connection, it is further to be noticed from Section 438(2)(iv) that it is within the competence of the High Court or the Court of Session while passing an order under Section 438 to impose such other condition as may be imposed under Section 437(3) of the Code as if the bail were granted under that section. Under Section 437(3) a condition can be imposed in order to ensure that the applicant shall attend in accordance with the conditions of the bond executed under Chapter XXXIII. That inclusion of a condition to meet the investigating officer or to attend the Court in the order under Section 438 is permissible in law. So even after the filing of the charge-sheet or after the issuance of process under Section 204 of the Code if an application under Section 438 is allowed, the High Court or the Court of Session is competent to impose appropriate condition for ensuring the attendance of the applicant before the lawful authority or the Court. In fact, arrest is not ruled out even after passing of an order under Section 438. The only safeguard is that immediately after the arrest the person arrested is not required to be sent in custody for availing the opportunity under Section 437 or 439. It is already indicated hereinabove that an order under Section 437 or 438 can be passed when the person is in custody. But an order under Section 438 can be passed before the person is taken into custody after an arrest. The language of Section 438 as a whole is couched in such a language along with the heading of the section that in appropriate case, the High Court or the Court of Session is competent to issue a direction for grant of bail to a person apprehending arrest in a non-bailable offence. It is already indicated hereinabove that Section 438 was codified on the basis of the recommendations made by the Law Commission and also keeping in view the conflicting decisions of different Courts. The object is also clarified in several judgments of the Apex Court as well as the High Courts indicating that for the purpose of investigation, inquiry or a trial going in custody after an arrest may not be needed and accordingly, so long a person is in custody he can apply for bail under Section 438 or under Section 439. But if he is not in custody and at the same time there is apprehension of arrest on an accusation of having committed a non-bailable offence he may pray for bail. There is nothing in Section 438 indicating the time when an application under that section as to be presented. It has also not prohibited the filing of an application even after filing of the charge-sheet or after the process is issued under Section 204 after taking of cognizance in a case. At the same time Sub-section (3) of Section 438 has elucidated the actions required to be taken by the arresting officer or the Magistrate taking cognizance in an offence in respect of a person who has already obtained an order under Section 438(1) of the Code.
49. It was argued on behalf of the State that in a police investigated case, the Public Prosecutor can produce the relevant records of investigation at the time of hearing of an application under Section 438. But such an action cannot be taken in respect of a case instituted on a complaint by a private individual. It is to be noted from the amended Sub-section (1) of Section 438 as applicable in West Bengal that a proviso has been added to Sub-section (1)(b) which is reproduced below:
'Provided that where the apprehended accusation relates to an offence punishable with death imprisonment for life or imprisonment for a term of not less than 7 years, no final order shall be made on such application without giving the State not less than 7 days notice to present its case.'
50. This proviso indicates that in case of serious offences especially in respect of cases mainly triable by Court of Session, notice is required to be given to the State so that the State can present its case while the application under Section 438 of the Code is taken up for hearing. But there is nothing in the said proviso necessitating issuance of a notice to the State in respect of the offence punishable for a term of less than 7 years. So an argument can be advanced that in respect of complaint cases the Court while considering an application under Section 438 would not get assistance of the State as no notice is required to be given to the complainant.
51. A reading of Sub-section (1) as amended in West Bengal does not indicate as to who would be made parties in an application under Section 438. So when an application under Section 438 is filed specially in respect of a complaint case, the opposite party must be the complainant and the Rules of business of the High Court or the Court of Session require that an application cannot be disposed of without giving an opportunity to the opposite party to be heard. In Section 438 in West Bengal as well as in few other States notice to the State or the Public Prosecutor has been made mandatory in respect of serious offences which are generally committed to the Court of Session for trial even such cases are instituted on the basis of a complaint. So what is indicated in the amended Sub-section (1) of Section 438 is that notice to the State is must in respect of serious offences. The notice to the State is made mandatory undoubtedly for the purpose of assisting the Court in disposing of the application under Section 438 after taking instruction from the appropriate person. There is no provision in Section 438 for requisitioning the records of the complaint case, but such calling for the lower Court record, is not indicated in Chapter XXXIII of the Code and in appropriate cases parties to the application take appropriate steps for production of the relevant materials so that the application under Section 438 can be disposed of judiciously. So the argument that the records of complaint cases cannot be produced at the time of hearing of an application under Section ,438 is devoid of any logic.
52. Much was argued on the provisions of Chapter VI of the Code pointing out that once the process to compel appearance of the parties are taken, no authority can be given to the High Court or to the Court of Session under Section 438 of the Code for interference. Reference was also made to Section 70(2) of the Code which indicates that every warrant of arrest issued by the Court under the Code was to remain in force until it is cancelled by the Court which issued it or until it is executed. So the argument was that if a warrant of arrest issued by a Court of Law after the filing of the charge-sheet or under Section 204 of the Code, the High Court or the Court of Session while exercising power under Section 438 is not competent to cancel the said warrant of arrest though there are other provisions on the basis of which such Courts can interfere with that order. But the provision of Section 70(2) also indicates that the Court issuing the warrant of arrest has the power to cancel it. So as soon as the issuing Court is apprised of the fact that an order under Section 438 in respect of the person against whom warrant of arrest has been issued is in force, it may cancel a non-bailable warrant or arrest or can convert it in a bailable warrant of arrest, the power of which is already given under Sub-section (3) of Section 438. Section 70(2) of the Code is also sufficient to indicate that as scon as the person against whom a warrant of arrest has been issued is arrested, it comes to an end, meaning that the warrant of arrest has been executed. So after arresting a person if it is detected that there is an order under Section 438, the arresting officer can proceed in accordance with Sub-section (3) of Section 438 immediately after the execution of the warrant of arrest. So we do not think that the provisions of Section 70 or the other provisions of Chapter VI or Section 209 of the Code prohibit entertainment of an application under Section 438 of the Code after the charge-sheet is filed or the process is issued under Section 204 or under Section 209. It is pertinent to mention that under Section 209, there are sufficient indications as regards the actions to be taken with regard to bail. So the arguments advanced on this score do not attract our judicial confidence.
53. We have already discussed hereinabove placing reliance on the different verdicts of the Apex Court that it is not permissible to introduce any new word or provision in a particular section. It is also indicated that there is no ambiguity in the provisions of Section 438 that requires judicial scrutiny. It is true that charge-sheet in a case is generally filed after finding out a prima facie case. Similarly, in a complaint case the learned Magistrate after examining the witnesses and perusing the documents produced, issues processes like warrant of arrest. In both these occasions cognizance is taken and thereafter, processes are issued indicating that the learned Magistrate was prima facie satisfied from the materials on record as regards the commission of the offence and thereafter issues appropriate process for apprehension of the accused person. So, it has been argued that as soon as the matter is pending before a Court of law there is no necessity to interfere with that case under Section 438 of the Code. It is to be noted that we have been considering a stage when an application under Section 438 is to be filed. There are cases in which charge-sheets have been filed by the police after investigation without the knowledge of the accused persons showing them as absconders. Such an accused person after the submission of the charge-sheet and on issuance of a warrant of arrest gets the knowledge of the case and then, only for the first time, he has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence. In a case of this nature, it cannot be thought of that the person who was unaware of the case should be arrested and kept in custody of the police or of the Court for getting an opportunity of filing an application under Section 437 or under Section 438 of the Code. It is desirable to keep in view the observations of the Law Commission and also of the Apex Court as regards the necessity of passing an order under Section 438 in these days when political vendetta and other factors rule the realm of police investigation of a case. We are not unmindful of a situation that in a complaint case a process can be issued relying on the statements of the witnesses examined under Section 200. But the person against whom those statements were made might be falsely implicated to satisfy political or personal vengeance and may be without his knowledge.
54. It is a settled principle of law that a man cannot be stated to be guilty unless his guilt is proved after adducing reliable evidence. Sending a person to custody after finding his guilt is a rule. But before finding the accused guilty, it is not always possible or permissible to conclude on the basis of the charge-sheet or on the basis of the process issued under Section 204 in a complaint case that custody of that person is necessary. The word 'bail' has not been defined in the Code, the literal meaning of the word 'bail' is to set free or liberate a person on security being given of his appearance. In Law Lexicon, the word 'bail' is defined 'to set at liberty a person arrested or imprison on security being taken for his appearance'. So the accepted meaning of 'bail' is to release of a person from legal custody.
55. Under Section 438 the question posed before the High Court or the Court of Session is whether a person if arrested on an accusation of having committed a non-bailable offence, can be released on bail. The apprehension of such an arrest is possible only when the person is being haunted by the police or other authority. In many of the cases such haunting of a person is possible only after the issuance of the warrant of arrest after the filing of the charge-sheet or after the steps under Section 204 of the Code are taken. At this juncture a person cannot move the Courts under Section 437 or under Section 439 because he is not in custody. But he can very well approach the High Court or the Court of Session under Section 438 for an appropriate order. The High Court or the Court of Session in its turn is competent to examine the case of the person and his suitability to be enlarged on bail after the arrest and then only an order under Section 438 is passed. So filing of an application under Section 438 itself does not mean that the applicant will be entitled to an order thereof. It is already settled that an order under Section 438 can be passed after examining each case cautiously and carefully inasmuch as it is an order converting a non-bailable offence into a bailable one and protecting a person for some time from going to the custody after the arrest. At the risk of repetition, we point out that we are not considering as to what order the High Court or the Court of Session is competent to pass under Section 438 and under which circumstances. We have simply considered the question posed before this Bench very minutely and keeping in view that Section 438 is placed between the two Sections 437 and 439, we deem it proper to accept the argument advanced by the present petitioners.
56. So after a careful scrutiny of the different case laws and on perusal of the structure of the Code of Criminal Procedure, we hold and conclude that there is no bar in filing an application under Section 438 after the filing of the charge-sheet or after the issuance of a process under Section 204 of the Code or after the issue of warrant of arrest in a complaint case. We also come to the conclusion that such an application is quite maintainable at post-cognizance stage of a case instituted on police report or complaint after the Court issues process like warrant of arrest for production of a person of having committed a non-bailable offence. The question is accordingly answered in the affirmative.
57. Since we have not gone into the merits of the pending applications, those applications be placed before the appropriate Benches for considerations in the light of the law decided by this Special Bench.
Let urgent certified copies of this judgment and order, if applied for, be supplied to the respective parties as expeditiously as possible.
S. Barman Roy, J.
I agree.
A. Barua, J.
I agree.