Anticipatory bail jurisdiction survives cognizance and process; courts may still grant relief in exceptional cases.

Section 438 of the Code of Criminal Procedure confers continuing discretionary power on the High Court and Court of Session to grant anticipatory bail, and that power is not terminated merely because cognizance has been taken or process or a warrant has been issued. Sub-section (3) is procedural and does not restrict the substantive jurisdiction under sub-section (1); however, the filing of a charge-sheet, issuance of process, or a warrant may be relevant to the exercise of discretion. The earlier view that anticipatory bail becomes unavailable after process was issued was overruled, though relief may still be refused on the facts of a particular case.

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Issues: Whether the power to grant anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 survives after the criminal court has taken cognizance and issued process.

Analysis: Section 438 confers a wide discretionary power on the High Court and the Court of Session to direct release on bail in anticipation of arrest. Sub-section (3) is procedural and regulates the manner in which an anticipatory bail order is given effect to; it does not limit the substantive power under sub-section (1). The filing of a charge-sheet and the issuance of a warrant may be strong circumstances bearing on the exercise of discretion, but they do not extinguish jurisdiction under Section 438. The scope of the provision is to protect personal liberty where arrest is reasonably apprehended, and the court may still grant anticipatory bail in exceptional cases even after cognizance and process have been issued.

Conclusion: The High Court and the Court of Session retain power to grant anticipatory bail under Section 438 even after cognizance has been taken and process or a warrant has been issued.

Final Conclusion: The earlier view that anticipatory bail becomes unavailable after issuance of process was overruled, but the individual petition was ultimately rejected on its facts.

Ratio Decidendi: Section 438 confers continuing discretionary jurisdiction to grant anticipatory bail until arrest, and the taking of cognizance or issuance of process does not by itself terminate that power.

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