The provisions of section 438 of the Code of Criminal Procedure are not limited to offences punishable with death or imprisonment for life.

JUDGMENT - V.S. KOTWAL, J.:---An apparently simple matter is sought to be made complicated in view of the hot contest.

2. One Roshanlal Biharilal Obrai, a permanent resident of Pune, has moved this Court by this application invoking the powers of this Court envisaged under section 438 of the Code of Criminal Procedure as he contended, inter alia, that there are reasonable grounds to believe or apprehend that he would be subjected to imminent arrest at the hands of the police in connection with certain non-bailable offences which have been registered against him at C.R. No. 361 of 1976 by the Farashkhana Police Station, Pune. The registration of the offences came to be a sequel to a complaint lodged by one G.R. Ahuja, also a resident of Pune, some time in the month of October 1976 in respect of offences alleged to have been committed by the petitioner about three years prior thereto, that means in the year 1973.

3. This petition had come up for orders initially on August 21, 1979, when the learned Public Prosecutor requested for time on the ground that he would be required to file an affidavit in reply. An affidavit in that behalf has now been filed by the Deputy Superintendent of Police, C.I.D. Special Cell, Pune, and the matter is now fully thrashed out by both the sides. The offences that have been registered against against the petitioner consist of those under sections 458, 467, 471 and 381 of the Indian Penal Code.

4. At the threshold the learned Public Prosecutor Shri Deshmukh raised a preliminary objection that as section 467 of the Indian Penal Code is punishable with imprisonment for life, provision of section 438 of the Code of Criminal Procedure are not applicable. He sought to rely on a ratio of a judgment of this Court in (Shrimant Appaji Patil v. State of Maharashtra)1, Criminal Application No. 630 of 1978, decided by Jahagirdar, J., on 29th June, 1978, reported in 1978 U.C.R. (Bom.) 499. On carefully going through the said judgment I feel that it does not lay down such a sweeping proposition. On the contrary, there are indications there in that there are no such limitations on the powers of this Court vis-a-vis the provisions contained in section 438 of the Code. The learned Single Judge relied on the ratio and observations of the Supreme Court in (Balchand Jain v. State of Madhya Pradesh)2, A.I.R. 1977 Supreme Court 367 and (Somabhai Chaturbai Patel v. State of Gujarat)3, 1977 XVII Gujarat Law Reporter 131. Shri Deshmukh submitted that provisions of section 438 of the Code of Criminal Procedure do not apply to an offence punishable with death or imprisonment for life. It is true that some question is echoed in both these judgments while dealing with such cases. It is equally true that the provisions of section 437 of the Code of Criminal Procedure are also considered and it is indicated that section 437 would control section 438 of the Code of Criminal Procedure. However, if one reads the entire judgment that may not appear to be enunciation as sought to be interpreted by the learned Public Prosecutor. Even in the Supreme Court case there are some indications about there being no fetter on the powers of this Court while dealing with section 438 of the Code of Criminal Procedure. The learned Single Judge has referred to those indications. The provisions contained in section 439 of the Code of Criminal Procedure are also required to be taken into account. Further, the observations in the Gujarat judgment (supra) would indicate that section 438 of the Code of Criminal Procedure itself is widely worded and does not engraft any limitations on the power of the Court. It, however, gives a caution as to how and when such powers should be exercised and that too sparingly and in a judicial manner. It thus makes a distinction that it is not as if that the High Court cannot exercise such powers but that it will not do so normally. All things considered, the trend of the judgments would indicate that these observations

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