( 1 ) THESE criminal petitions have been referred to this Bench to decide"whether filing of the charge-sheet or issuance of warrant by a magistrate would put an end to the power under Section 438 of the Cr. P. C. to grant anticipatory bail?"in the case of Dr. A. Ebenezer v State of Karnataka by S. H. O. Cubbon Park P. S, Bangalore City, Hon'ble Mr. Justice Sreedhar Rao held that after filing of a charge- sheet, the right of accused to seek anticipatory bail gets extinguished.

( 2 ) IN the said case of Dr. Ebenezer, supra, the petitioner had approached this Court invoking jurisdiction under Section 438 of the Cr. P. C. challenging the order of the Trial Court rejecting the application of the petitioner under Section 317 of the Cr. P. C. and issuing NEW against him. In this regard, the learned Judge after interpreting the judgment of the Apex Court in the case of Gurbaksh Singh Sibbia v state of Punjab, disagreed with the view expressed by Full Bench of andhra Pradesh High Court in the case of Smt. Sheik Khasim Bi v state. The learned Judge on consideration of the rival contentions held that, "in the backdrop of the object and purpose of the provisions of anticipatory bail, it does not really warrant to make the provision of section 438 of the Cr. P. C. applicable after filing of a final report and grant of anticipatory bail in such a situation is only a redundant effort". As this view has been doubted by Hon'ble Mrs. Justice Manjula Chellur, she referred these petitions for consideration of the aforesaid question.

( 3 ) TO understand the law regarding anticipatory bail we have to look into the recommendations of the Law Commission of India in its 41st report introducing the provision of Section 438 of the Cr. P. C. as well as various pronouncements of the Hon'ble Supreme Court in this regard.

( 4 ) IN the 41st Report of the Law Commission, it is pointed out thus:"the necessity for grant of the anticipatory bail arises mainly because sometimes influential persons try to implicate the rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In the recent times, with the accentuation of political rlvalry, this tendency is showing signs of steady increase. Apart from false cases where there is reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail". And thus the Law Commission recommended acceptance of the provision for grant of'anticipatory bail'.

( 5 ) THIS recommendation of the Law Commission was accepted by the central Government and Clause 447 was introduced in the Draft Bill of the new Code of Criminal Procedure conferring an express power on a court of Sessions or a High Court to grant 'anticipatory bail'.

( 6 ) COMMENTING on this provision in the Draft Bill, the Law Commission observed in Paragraph 31 of its 48th Report thus:"the Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendations made by the previous Commission (41st report ). We agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised. We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the public prosecutor. The initial order should only be an interim one. Further, the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the court is satisfied that such a direction is necessary in the interests of justice". In the case of Balchand Jain v State of Madhya Pradesh, the Hon'ble supreme Court for the first time had occasion to examine and propound the scope a

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