1. The petition has been filed by Shri Krishna Gupta who has been summoned to stand trial for offences under Sections 406, 420, 467, 468 of the Indian Penal Code in complaint case no. 967 (C)/06.

2. There is no dispute that the properties detailed in the complaint petition noted above were the joint properties of the complainant and other accused persons. It is also not disputed the there is a partition suit pending for partition of the properties at Gajipur (UP.). The allegation is that the petitioner as vendee and other accused persons as vendors, with active connivance of each other, brought into existence a forged and fabricated deed of sale transferring 3.75 1/2 acres of land out of total area of 5.63 acres as detailed in annexure.

3. The complainant alleged that he was not a party to the above noted sale deed nor did he sign the same in token of executing the sale deed and registering the same and the document was forged and fabricated.

3. The contention is that the complainant very much participated in execution of the deed and admitted the execution of the deed before the Registrar who exempted all the vendors i.e. the complainant and other accused persons from putting their L.T.Is. becuase they were personally known to the Registrar and that was admittedly recorded at the appropriate space of the sale deed. The further contention was that the signature of the complainant on the sale deed is very much of the complainant and for reasons best known to him, he has filed a false case.

4. Shri K.N. Choubey Sr. Advocate appearing for the complainant pointed out that the pendency of a civil suit and in view of other circumstances the deed could not be said to be a valid document and the complainant Praveen Kumar Gupta was never a party to it. Shri Choubey further raised the question of maintainability of the present petition by pointing out that the petitioner and other accused persons have only been summoned to appear in the court and as such they could not have any reasonable belief of being arrested on an accusation of committing a non-bailable/ cognizable offence. Shri Choubey cited A.I.R. 1980 SC 1632 Gurubaksha Singh Sibbia and Ors. Vs. State of Punjab and (2005) 4 SCC 303 Adri Dharan Das to contend that this could not be a case for granting anticipatory bail. Sri Choubey further placed before this Court 1984 BBCJ 383 Fakira Singh Vs. The State of Bihar and contended that issuance of warrant of arrest against the accused was a sine quanon and there being no issuance of warrant of arrest the petition was not maintainable.

5. Learned counsel appearing for the petitioner cited 1997 Cr. L.J., 961 P.V. Narsimha Rao Vs. The State (C.B.I.) to submit that even if summons have been issued on a petition of complaint a petition of the present nature could very well be maintained. Sri Mahto appearing for the petitioner further placed before me 1986 P.L.J.R. 767 Bajrang Lai Agrawal Vs. The State of Bihar to contend that even if the cognizance has been taken in a case, a petition of the present nature could be entertained.

6. The objection raised by the learned counsel for the complainant being such as to oust the jurisdiction of any court empowered to entertain a petition under Section 438 Cr.P.C, it is pertinent that the same be decided first then only the question of granting anticipatory bail or not granting the same could be taken up for decision. This appears all the more necessary for the reason that if the present petition is not maintainable before this Court in the light of the submissions of Shri Choubey the senior counsel appearing for the complainant then this court could not proceed further to examine the merits of the prayer made under Sec. 438 Cr.P.C. For appreciating the petition it is pertinent to have a glance of Sec. 438 Cr.P.C. 438. Direction for grant of bail to person apprehending arrest."(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailabl