Section 438 applies to all non-bailable offences. It is not confined to duly those non-bailable offences which are punishable with death or imprisonment for life anticipatory bail can be granted in respect of non bailable offences whether they are cognizable or non-cognizable offences.
In view of the decisions of the various High Courts and the Supreme Court it is now settled that anticipatory bail can be granted even after the Criminal Court has taken cognizance, and summons or warrant has been issued by the Court
In the following cases it was held that anticipatory bail can be granted even after the Criminal Court has taken cognizance, and summons or warrant has been issued by the Court.
1. In Sheik Khasim Bi vs The State AIR 1986 AP 345 a Full Bench of Andhra Pradesh High Court held that "the filing of a charge-sheet by the police and issuing of a warrant by the Magistrate do not pub an end to the power to grant bail under section 438(1), Cr. P. C., and on the other hand we are of the view that the High Court or the Court of Session has power to grant anticipatory bail under section 438(1) to a person after the criminal court has taken cognizance of the case and has issued process viz., the warrant of arrest of that accused person. "
It was also held that
"A notice to the Public Prosecutor can be issued after the application is filed, and after hearing both sides the court will have the necessary information particularly regarding the fact of charge-sheet having been filed and the warrant having been issued, and if the High Court or the Session Court is satisfied that there are certain exceptional circumstances, then it may in its discretion, instead of directing the applicant to obtain bail under Section 437 or Section 439 Cr. P. C., grant anticipatory bail under Section 438 Cr. P. C., with suitable directions and impose necessary conditions."
" Of course, as pointed by the Supreme Court in Gurbaksh Singh's case, it is purely within the discretion of the court, but the fact that the charge-sheet is filed and warrant is issued is yet another strong circumstance which the court should keep in view while exercising this extraordinary power. However, the non-exercise of this extraordinary power ordinarily is not due to lack of jurisdiction. The discretion to exercise such power is always there, but it always depends upon various facts and circumstances of each case. "
2. A Division Bench of the Punjab and Haryana High Court in Puran Singh v Ajit Singh 1985 Cri LJ 897 held that
"The main governing factor for the exercise of jurisdiction under section 438 Cr. P. C., is the apprehension of arrest by a person accused of the commission of a non-bailable offence. The section makes no distinction whether the arrest is apprehended at the hands of the police or at the instance of the Magistrate. The issuance of a warrant by the Magistrate against a person, thus, justifiably gives rise to such an apprehension and well entitles a person to make a prayer for his anticipatory bail."
" The High Court or the Court of Session may, however, decline to exercise its powers under section 438(1), Cr. P. C. Keeping in view the fact that the Magistrate has summoned the accused through bailable warrant i.e., a relief almost similar to what can be granted by the court under section 438(1) Cr. P. C., yet that does not mean that the court has no jurisdiction to grant anticipatory bail to such an accused person. The grant of bail under section 438(1)by the High Court or the Court of Session is, to my mind, dependent on the merits of a particular case and not to the order of the Magistrate choosing to summon an accused through bailable or non-bailable warrant".
3. In Shamim Ahmed And Ors. vs State And Ors.2003 CriLJ 2815. A three judge bench of Calcutta High Court held 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. "
It was observed that
" 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. "
It was also observed that
" 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 438(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. "
The other cases in which similar view was taken are
1.Pankaj Lochan Sahoo v. State 1995 C.Cr. LR (Cal) 244
2. P.V.Narashima Rao vs State (CBI) 1997 Cri LJ 961
3. Nirbhay Singh And Anr. vs State Of Madhya Pradesh 1995 CRI. L.J. 3317,
4. Ravindra Saxena Vs State of Rajasthan (2010) 1 SCC 684
5. Ragupathi vs. Govindan 2006(2) MLJ (Cri) 336
6. Neela.J.Shah Vs State of Gujrat 1998 1 G.L.H. 594 , etc
However in the under mentioned case, contrary view has been taken.
1. Ashok Kumar V. State of Orissa, 2000 Cr.LJ 1975 it was held that the powers of the Court of Session and of the High Court Under section 438 (1) Cr.P.C can be invoked by a party at a stage when there is reason to apprehend that he may be arrested in respect of accusation for a non- bailable offence when the investigation is in progress and the police has neither completed its investigation nor filed the charge-sheet. The Magistrate neither has taken cognizance nor issued process against the person. Once this is done, the stage of invoking the power of the Court of Session or of High Court is over.
2.Mansa Murmu and Anr. v. State of Orissa : (1989) 2 OCR 439 while considering the stage of grant of anticipatory bail the learned Judge held that the application Under section 438 is maintainable at a stage prior to arrest when a person apprehends arrest in some non- bailable offences, but such an application is not maintainable after the arrest or production before the Court or after warrant of arrest has been issued. It has been observed that if the Magistrate has already taken cognizance of an offence and has issued non-bailable warrant of arrest, the stage for invoking the jurisdiction of the High Court or the Court of Session for anticipatory bail is already over
3. Bhramar alias Bhramarbar Mohapatra and Anr. v. State : 51 (1981) CLT 391 held that the person who is an accused and is not under any restraint and apprehends arrest in a non- bailable offence may move the Court of Session or the High Court for grant of anticipatory bail Under section 438(1) of the Code, but it is not applicable to an accused against whom the Court has already issued process after taking cognizance of the offence.
4.Mohan Behera and others v. State: 59 (1985) CLT 110, this Court has held that anticipatory bail Under section 438 Cr.P.C is not to be granted if the Magistrate has already taken cognizance and issued process.
5. Kundal Majumdar Vs. State of Tripura, 2002 Cr. L. J. 353 (Gau). also similar view was taken.
