Anticipatory bail remains available after cognizance and arrest warrant if genuine apprehension of arrest is shown.

Anticipatory bail under Section 438 CrPC remains available even after cognizance of a non-bailable offence has been taken and a warrant for arrest has been issued, if the applicant shows a genuine and sufficient apprehension of arrest. The text explains that "reason to believe" requires probable cause, not mere suspicion, and that sub-section (3) does not narrow the scope of sub-section (1); it only governs how an order under sub-section (1) is implemented. Cognizance and issuance of a warrant therefore do not by themselves extinguish the power to consider anticipatory bail where refusal would cause irreparable injustice.

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Issues: Whether anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 can be sought when the Magistrate has already taken cognizance of a non-bailable offence and issued a warrant for arrest.

Analysis: Section 438 permits a person who has reason to believe that he may be arrested on an accusation of a non-bailable offence to approach the High Court or Court of Session for a direction of release on bail in the event of arrest. The expression "reason to believe" denotes a belief founded on sufficient cause and probable apprehension, not mere suspicion. Sub-section (3) does not curtail the scope of sub-section (1); it only provides the manner in which an order under sub-section (1) is to be worked out, including the issuance of a bailable warrant where cognizance has already been taken. The taking of cognizance and issuance of a warrant do not, by themselves, extinguish the power to consider anticipatory bail where the applicant genuinely apprehends arrest and the Court finds that refusal may cause irreparable injustice.

Conclusion: Anticipatory bail is maintainable even after cognizance has been taken and a warrant of arrest has been issued, provided the statutory conditions are satisfied.

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