The enabling provision empowering a court to grant anticipatory bail is independent of the provisions related to the steps to be taken after a person has been allowed anticipatory bail.

D.S.Dhaliwal, J.

1. Md. Alam @ Abdul Allam, petitioner No. 1 is the husband of complainant Sagra Khatoon @ Sajeda Khatoon. Abdul Kalam, Md, Kalim and Md. Salim, petitioners No. 2 to 4 are brothers of petitioner No. 1 and Abdul Bari @ Faturi, petitioner No. 5 is their father. Process has been issued against the petitioners for offences under Sections 323, 498A and 379 I.P.C. on the basis of criminal complaint filed by Sagra Khatoon @ Sajeda Khatoon. Hence this application for anticipatory bail.

2. It is alleged that the complainant was married to petitioner No. 1 in June, 1996 according to Islamic rites and after the marriage she resided at the house of her in-laws for some time, during which period petitioners demanded Rs. 50,000/-for starting some business and as the complainant was not in a position to meet that demand she was turned out from the matrimonial house on 22.11. 1996 after beating her and snatching away her ornaments.

3. Counsel for the petitioners submitted that the allegations are omnibus against all the family members and in fact the complainant never come to the house of the petitioners which is evident from the fact that Julekha Khatoon, mother-in-law of the complainant has also been made as one of the accused although as per death certificate (Annex ure-4) she had died as far back as on 14.3.1967. It is also submitted that petitioner No. is working at Bombay with a private concern. Counsel for the petitioners further submitted that the learned Sessions Judge was not right in dismissing the anticipatory bail application of the petitioners as non-maintainable, merely on the ground that cognizance has been taken and warrants of arrest have been issued. In support of his contention learned Counsel has relied upon a decision of this Court in the case of Bajarang Lal Agrawal v. State of Bihar, reported in 1969 PLJR 767.

4. Section 438 of the Code of Criminal Procedure is in three parts. Subsection (1) lays down that whenever 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 Sessions 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. Second part of the section which is contained in sub-section (2) deals only with imposition of certain conditions upon the person to whom anticipatory bail is allowed, and the last part of the Section contained in sub-section (3) relates to the procedure to be followed in respect to an accused to whom anticipatory bail is allowed. It lays down that if any such person is arrested without warrant by an Officer-in-Charge of a police Station on such accusation and is prepared either at the time of his arrest or at any time while in the custody of such Officer to give bail, he shall be released on bail, it further lays down that if a Magistrate taking cognizance of such offence decides that a warrant should be issued, he shall in the first instance issue a bailable warrant in conformity with the direction of the court given under sub-section (1). Nothing in this sub-section can be deemed to mean that an application for anticipatory bail will not lie if a Magistrate has taken cognizance of a non-bailable offence and has issued a warrant of arrest. In fact sub-section (1) is the enabling provision empowering a court to grant anticipatory bail and is independent of the provisions contained in sub-section (3) which relates only to the steps to be taken after a person has been allowed anticipatory bail. In case of Nirbhay Singh and another v State of Madhya Pradesh, reported in 1995 Criminal Law Journal 3317, a Full Bench decision of Madhya Pradesh High Court may also be referred to with advantage on this point.

5. As regard merits of the bail plea, I find that the case in which process has been issued against the petitioners is a private criminal complaint filed after a delay of a