The court established that the power under section 438 of Cr.P.C. cannot be used to grant anticipatory bail when a non-bailable warrant has been issued by the Criminal Court under section 319 of Cr.P.C.

1. The application is filed under section 438 of Criminal Procedure Code for anticipatory bail in RCC No. 158/2013 which is presently pending in the Court of Judicial Magistrate, First Class, Ambajogai. The case is filed for offences punishable under sections 420, 467, 468, 471 etc. of Indian Penal Code and it can be said that section 120-B of I.P.C. can also be used in view of the nature of allegations. Initially the chargesheet was filed against 42 accused persons, but only four persons faced trial as their case was separated as they were available and they are convicted and sentenced for offences of creating false record and cheating the complainant Society. From the evidence given in that case and during trial of that case against four accused, the learned J.M.F.C. passed order against applicant under section 319 of Cr.P.C. and non bailable warrant is issued against the present applicant. The crime was registered in aforesaid case on the basis of report given by present applicant and now he is to face the trial for the same offences. The order made by the learned J.M.F.C. under section 319 of Cr.P.C. was challenged by the applicant by filing the revision in Sessions Court and by filing further proceeding in this Court. He could not succeed in the said proceedings and it can be said that he has not challenged the said order further. Both the sides are heard.

2. The learned counsel for applicant mainly submitted that as the order is made under section 319 of Cr.P.C., there will be entire trial which can be called as de-nova trial against the present applicant and there will be no reason for the arrest of the accused and he can be made available after taking bond from him. He placed reliance on the case reported as (2010) 11 Supreme Court Cases 520 [Harinarayan G. Bajaj Vs. State of Maharashtra and Ors.]. In this case, the Apex Court has discussed the procedure which needs to be followed when a person is made accused by using the provision of section 319 of Cr.P.C. There cannot be dispute over the proposition made. The present matter involves altogether different point. The point is whether the applicant is entitled to be released on anticipatory bail under section 438 of Cr.P.C. when the Criminal Court has used the section 319 of Cr.P.C. and has issued warrant as process against the present applicant.

3. For ascertaining the right of the present applicant, something needs to be said about the case itself. Present applicant has been working as a Chairman of Seva Sahakari Sanstha from Aswalamba, Tahsil Parli Vaijnath, District Beed. There is allegation that as many as 36 false loan proposals were made by this Society and loan was obtained from District Bank, Beed. The amount of loan was around Rs. 28,57,616/-. There is allegation that when the applicants were not agriculturists, false record was created, including the record of 7/12 extract, declarations and the loan proposals were processed for getting crop loan. The amount was actually shown to be disbursed.

4. The submissions made and the papers of investigation show that when chargesheet could have been filed against 42 persons, police could trace only four persons. Present applicant gave report to police on 25.2.2013 and he made allegations against the persons in whose name the loan was taken. He made allegations against Secretary also. The Secretary and most of other persons in whose names the loan was obtained and shown to be disbursed, are absconding.

5. The learned J.M.F.C. has observed that the material available and the evidence which was available for him for using section 319 of Cr.P.C. is sufficient to show that it is the applicant, who was responsible for processing the proposals. Applicant is disputing that he has signed on the proposals and he wants to rely on the report given by hand writing expert. At this stage and for present purpose, it can be said that the proposals could not have been processed unless and until the Chairman and the Secretary had j