An application for anticipatory bail can be entertained and allowed even after cognizance has been taken in the case, as the provisions of section 438 of the Code of Criminal Procedure intend to provide for a further remedy in connection with the grant of bails.

L.M. Sharma, J.

The question which has been raised in this case on behalf of the State is whether an order granting anticipatory bail under section 438 of the Code of Criminal Procedure can be passed after cognizance of an offence has already been taken against the petitioners.

The judgment of complaint was filed before the chief Judicial Magistrate, Muzaffarpur, against the petitioners for commencing a criminal prosecution. A copy of the complaint petition has been attached to the present application as annexure 2'. It is stated that the petitioners are businessmen, and their business premises and god own were inspected on the 25th. March, 1980 when certain irregularities were found with respect to three bags of cardamom amounting to contravention of clause 3 (a) and 7 of the Bihar Essential Articles (Display of Prices and Stock).Order, 1977. It is said that consequently, the petitioners are guilty under section 7 of the Essential Commodities Act.

2. By order dated 21st. April, 1980, the Chief Judicial Magistrate took cognizance of the case of the petitioners and fixed a date for their appearance for the purpose of trial. The present application for anticipatory bail was thereafter filed in this court.

3. It is contended on behalf of the petitioners that there is no merit in the allegations made in the complaint petition and since they are apprehensive of being arrested, their prayer for bail should be allowed.

4. The application has been opposed by Mr. Additional Advocate General On the grounl1 that the application is not maintainable as cognizance has already been taken in the case. It has been contended that the reference in sub-section 2(i) in regard to the accused making himself available to the police and not to the court indicates that the stage at which the provisions under section 438 of the Code of Criminal Procedure can be invoked is before the court comes into the picture. Similar inference was sought to be drawn by the learned counsel from the language of subsection 3.

5. It is well settled that such a construction of the statute should bi: preferred which may advance the remedy. The provisions of section 438 of the Code have been introduced for the first time in the present Code and intend to provide for a further remedy in connection with the grant of bails. The section was incorporated on the recommendation of the Law Commission in its 41st. report observing that some times influential persons try to implicate their rivals in false cases for disgracing them or for other purposes of getting them detained in jail for some days and in recent times this tendency is showing signs of steady increase and there seems no justification to require an accused person first to submit to custody and remain in prison for some days before applying for bail specially where he is not likely to abscond or otherwise misuse the liberty while on bail. Unless, therefore, the language of the section so indicates, the court would not favour an interpretation which does not advance the object of the legislation. I do not find the language used in the section as restricting its field. The only condition mentioned in that the accused should have a reasonable apprehension of being arrested on an accusation of having committed a non-bailable offence. This postulates that the accused has not been actually arrested-for in that event, no question of grant of bail anticipatory in nature can arise. The direction which the High court may give, as mentioned in section 2 (i) is not an essential one to be given in every case. It is envisaged only in such cases where it can apply. Similar is the position with respect to sub-section (3). The provisions not being universally applicable cannot by implication restrict the scope of the main section to cases still resting with the police.

6. No case has been cited on either side dealing - with the point raised before me. But the observation in Gurubaksh Singh vs. State of Punjab (1980 B.B.C.J. (S.C.) 1)