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Issues: Whether an application for anticipatory bail under Section 438 of the Code of Criminal Procedure is maintainable at the post-cognizance stage after filing of the charge-sheet or issuance of process, including issuance of warrant of arrest, in cases instituted on a police report or on a complaint.
Analysis: Section 438 confers a broad pre-arrest remedy to a person who has reason to believe that he may be arrested on an accusation of a non-bailable offence. The provision contains no express bar limiting its invocation to the investigation stage, nor does its language exclude cases where cognizance has been taken and process has been issued. The structure of Chapter XXXIII, the placement of Section 438 between Sections 437 and 439, and the terms of sub-section (3) indicate that the section operates to protect a person from arrest and custody, while leaving the Court free to impose conditions and the Magistrate free to act consistently with any direction granted. The absence of custody at the time of application does not destroy maintainability. The power to grant relief remains discretionary, but the right to move the Court survives even after cognizance, charge-sheet, or issue of warrant in a complaint case or police case.
Conclusion: Such an application is maintainable at the post-cognizance stage, and the question is answered in the affirmative, in favour of the petitioners.
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