Shamim Ahmed And Ors., Haradhanvs State And Ors (Calcutta High Court-04/04/2003)
A Full Bench of Andhra Pradesh High Court in Sheikh Khasim Bi v. State reported in 1986 Cr.LJ 1303 (AP) has held by overruling two of its earlier decisions, that the filing of charge-sheet by police and issuance of warrant by Magistrate, do not take away the power to grant anticipatory bail under Section 438. A similar view was taken by the Full Bench of Madhya Pradesh High Court in Nirbhay Singh v. State reported in 1995 Cr.LJ 3317 (MP) and viewed that where an order of anticipatory bail is passed after issue of non-bailable warrant of arrest by a Magistrate the duty of the police officer entrusted with execution of the warrant would be to arrest the person and produce him before the Magistrate who thereupon shall deal with the accused as required by the order of anticipatory bail. In fact in both the cases, the view taken by the Division Bench of Punjab and Haryana High Court in Puran Singh v. Ajit Singh reported in 1985 Cr.LJ 897 (P&H) were confirmed.
As regards other aspects of maintainability of an application under Section 438 at a post cognizance stage, we like to point out that while passing an order under Section 438 the High Court or the Court of Session, wherever such an application is presented for consideration, is required to consider the application on merits, and in the order imposes conditions, in the light of the facts of a particular case, as may be thought fit and proper. In Section 438(2) it is further clarified that the conditions which could be imposed under Section 437(3) can also be imposed, “as if the bail were granted under that section”. This particular aspect of the legislation is required to be taken into account while considering the maintainability of an application under Section 438 at a post cognizance stage. There is nothing in Section 438 authorising an applicant to get an order mandatorily. On the other hand, it is clarified by the Apex Court in several judgments that the passing of an order under Section 438 is entirely at the discretion of the Court where such an application is filed. So mere filing of an application under Section 438 neither can stall an investigation or inquiry nor it can stand on the way of a trial of a case after filing of the charge-sheet or after issuance of process under Section 204 or 209 of the Code.