1986 (2) TMI 349 - HC - Indian Laws

High Court can grant anticipatory bail post-warrant under Cr. P. C. Power clarified for judicious exercise.

Sheik Khasim Bi Versus The State

Sheik Khasim Bi Versus The State - TMI Issues Involved:1. Whether the High Court or the Sessions Court has the power to grant anticipatory bail under Section 438 of the Cr. P. C., 1973, after a competent criminal court has taken cognizance of the case and issued a warrant for arrest.Issue-Wise Detailed Analysis:1. Power to Grant Anticipatory Bail Post Cognizance and Issuance of WarrantBackground and Judicial Opinions:- The question arose from differing views in previous cases. Madhusudan Rao, J., in N. Dasaratha Reddy v. State, held that Section 438 applies only to arrests where the court's process has not been issued. This view was upheld by a Division Bench in Kamalakara Rao v. State of A. P.- In the present case, the Full Bench was asked to reconsider this view after a Division Bench disagreed with the earlier rulings.Section 438 Cr. P. C. Analysis:- Section 438(1) allows a person who apprehends arrest to apply for anticipatory bail. Sub-section (2) allows the court to impose conditions. Sub-section (3) provides for the procedure if such a person is arrested.- The Law Commission recommended this provision to prevent misuse of arrest powers, especially in politically motivated cases.Supreme Court Interpretation:- In Gurbaksh Singh v. State of Punjab, the Supreme Court held that the legislature conferred wide discretion on the High Court and the Court of Session to grant anticipatory bail. It emphasized that anticipatory bail is sought when there is mere apprehension of arrest and should be granted with due care and circumspection.Contrary Views and Full Bench Decision:- Madhusudan Rao, J., and the Division Bench in Kamalakara Rao's case stressed that Section 438(3) restricts the power to grant anticipatory bail after the court's process has been issued.- The Full Bench disagreed, stating that sub-section (3) does not curtail the powers under sub-section (1). It merely provides the procedure for situations where anticipatory bail is granted, and an arrest is made thereafter.- The Full Bench cited decisions from other High Courts, such as the Madhya Pradesh High Court in Ramsewak v. State of Madhya Pradesh and the Punjab and Haryana High Court in Puran Singh v. Ajit Singh, which supported the view that filing a charge-sheet does not end the power to grant anticipatory bail.Conclusion:- The Full Bench concluded that Section 438(1) Cr. P. C. allows the High Court or the Sessions Court to grant anticipatory bail even after cognizance is taken and a warrant is issued.- The court emphasized that the discretion to grant anticipatory bail should be exercised judiciously, keeping in view the circumstances of each case.Final Judgment:- The Full Bench overruled the previous decisions in Kamalakara Rao's case and N. Dasaratha Reddy's case, holding that the High Court or the Court of Session retains the power to grant anticipatory bail under Section 438(1) Cr. P. C. even after a warrant is issued post-cognizance.- The specific petition for anticipatory bail in this case was dismissed, with the petitioner advised to surrender to the police and then move for bail.Summary:The Full Bench of the Andhra Pradesh High Court resolved the issue by affirming that the High Court or the Sessions Court has the power to grant anticipatory bail under Section 438(1) Cr. P. C. even after the criminal court has taken cognizance and issued a warrant for arrest. The previous rulings restricting this power were overruled. The court emphasized that while the power to grant anticipatory bail should be exercised with caution, it does not cease merely because a charge-sheet has been filed and a warrant issued.