Anticipatory bail under Section 438, Cr. P. C. is not available after the filing of a charge-sheet and issuance of a non-bailable warrant.

( 1 ) THIS criminal miscellaneous petition for anticipatory bail under S. 438, Cr. P. C. is directed to be posted before Division Bench by Punnayya, J. as it was felt that the decisions of Madhusudan Rao, J. in N. Dasaratha Reddy v. State, 1975 (2) APLJ (HC) 214 and Ramachandra Raju J. in Crl. M. P. No. 884 of 1981, D/- 23-4-1981 requires reconsideration in view of the decision of the Supreme Court in Gurbaksh Singh v. State of Punjab, AIR 1980 SC 1632 : (1980 Cri LJ 1125 ).

( 2 ) THE petitioner filed an application for anticipatory bail under S. 438, Cr. P. C. as he apprehends arrest in a criminal case where the petitioner along with others are charge-sheeted for conspiracy to commit murder under Section 120-B, I. P. C. The main plea of the petitioner is that he is not in any way concerned with the crime and that he is an Agricultural B. Sc. , graduate and even though his name is not mentioned in the F. I. R. and even though at the initial stage he was not considered to be connected with the crime, he is sought to be implicated and the case is sought to be foisted on him at this belated stage and therefore, anticipatory bail should be granted to him.

( 3 ) THE Public Prosecutor raised a preliminary objection as to the maintainability of this application. It is contended that the charge-sheet has been filed and the non-bailable warrant is issued by the Magistrate and at this stage, the petitioner is not entitled to invoke S. 438, Cr. P. C. and seek anticipatory bail. Even on merits also, this is not a fit case for granting anticipatory bail as two witnesses spoke to the participation of the petitioner in the conspiracy.

( 4 ) THE relevant provision that controls the decision is S. 438, Cr. P. C. which is as follows :"438 (1) when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail, (2) When the High Court or the Court of Session makes a direction under Sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including - (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make an inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer. (iii) A condition that the person shall not leave India without the previous permission of the Court. (iv) such other condition as may be imposed under sub-section (3) of S. 437 as if the bail were granted under that section. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person he shall issue a bailable warrant in conformity with the direction of the court under sub-section (1 ). "section 438 confers power on the High Court and the Court of Session to grant bail in the event of imminent arrest of a person. Section 438 comprises three facts, sub-section (1) is an enabling provision to seek direction for bail when a person reasonably apprehends the arrest on an accusation of non-bailable offence. Sub-section (2) is concerned with the enumeration of condition that may be imposed by the court while granting anticipatory bail, sub-section (3) pertains to implementation of the order and continuity of proceedings under Criminal P. C. in the event of order under S. 438. T