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Issues: (i) Whether a Magistrate taking cognizance of a non-bailable offence on a complaint is bound to issue a bailable warrant in the first instance and cannot issue a non-bailable warrant when the accused has not obtained anticipatory bail. (ii) Whether the jurisdiction of the High Court or the Court of Session to grant anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 is curtailed once a Magistrate decides to issue a bailable or non-bailable warrant under Section 204 of that Code.
Issue (i): Whether a Magistrate taking cognizance of a non-bailable offence on a complaint is bound to issue a bailable warrant in the first instance and cannot issue a non-bailable warrant when the accused has not obtained anticipatory bail.
Analysis: The power to issue process is governed by Section 204 of the Code of Criminal Procedure, 1973, which permits the Magistrate to issue summons or warrant according to the nature of the case, subject to statutory exceptions. The Court read Section 438(3) as operating only where anticipatory bail has already been granted, in which event the Magistrate issuing process must comply with that direction. The provision was held not to create a general mandate that a bailable warrant must always issue first merely because anticipatory bail has not been obtained. The Magistrate's discretion to issue process was therefore not restricted in that manner.
Conclusion: The Magistrate is not mandatorily required to issue a bailable warrant in the first instance merely because the accused has not obtained anticipatory bail.
Issue (ii): Whether the jurisdiction of the High Court or the Court of Session to grant anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 is curtailed once a Magistrate decides to issue a bailable or non-bailable warrant under Section 204 of that Code.
Analysis: The Court held that the governing consideration under Section 438 is the apprehension of arrest for a non-bailable offence, and the source of that apprehension may be police action or process issued by a Magistrate. Section 438 does not distinguish between these situations. The fact that a Magistrate has chosen to summon an accused by bailable or non-bailable warrant may be relevant to the exercise of discretion, but it does not extinguish the jurisdiction to consider anticipatory bail. The earlier view treating the Magistrate's process as a jurisdictional cut-off was overruled.
Conclusion: The High Court or the Court of Session retains jurisdiction to consider anticipatory bail notwithstanding the Magistrate's order issuing bailable or non-bailable warrant.
Final Conclusion: The reference was answered by holding that Section 438 jurisdiction is not confined to the period before a Magistrate issues process, and the Magistrate is not bound to issue a bailable warrant in every such case; the petition itself was dismissed as infructuous.
Ratio Decidendi: Section 438 of the Code of Criminal Procedure, 1973 turns on apprehension of arrest for a non-bailable offence, and the Magistrate's choice of process under Section 204 does not by itself defeat or terminate the jurisdiction to consider anticipatory bail unless anticipatory bail has already been granted and the statutory consequence under Section 438(3) is attracted.
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