Section 438 of the Code of Criminal Procedure, 1973 applies to cases where an accusation has already been made as well as cases where an accusation is likely to be made.

S.K. JHA, J.

1. The question raised in the application is a matter of first impression relating to the true construction of the provisions of Section 438(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code). The petitioner is the first informant having lodged a first information report at Kesaria Police Station making allegations and accusations of various offences under Sections 147, 148, 149, 302 and 379 of the Indian Penal Code against Sheikh Mukhtar, opposite party no. 2. The aforesaid accused-opposite party no. 2 filed a petition for grant of an anticipatory bail under Section 438 of the Code and on the 10.4.1974 the learned Sessions Judge, Motihari passed an ORDER :directing that in the event of the aforesaid accused being arrested in the case, he shall be released on bail of Rs. 3000/- with two sureties of the like amount each. The aforesaid ORDER :was also made conditional with directions attached thereto that the accused-opposite party no. 2 would make himself available for interrogation by the police officer, as and when required, that he would not directly or indirectly, make any inducement or threat to any person so as to dissuade him from disclosing facts relevant to the case to any police officer and that he would not leave the district of East Champaran without the previous permission of the Court. Against the aforesaid ORDER :of anticipatory bail granted by the learned Sessions Judge, the first informant has moved this Court not on any ground that the accused-opposite party no. 2 has been hampering the course of a fair trial or investigation, but purely on a question of law challenging the ORDER :as being without jurisdiction.

2. Mr. Maqbool Ahmad, learned counsel for the petitioner contended that since the opposite party no. 2 has already been made an accused in a first information lodged by the petitioner, Section 438 cannot have any application. Learned counsel contended that the High Court or the Court of Session has been conferred with the power and jurisdiction to grant anticipatory bail under Section 438 of the Code only in such cases where no accusation has yet been made. But once an accusation has been made, Section 438 can have no application. If a rule had not already been issued in this case, I would have been most reluctant to interfere with the ORDER :passed by the learned Sessions Judge at the instance of the first informant in the absence of any allegation of the misuse of the privilege of bail by opposite party no. 2. Since, however, a rule has already been issued and counsel for opposite party no. 2 appeared to challenge the petitioner's petition and both the parties have made their submissions on the true scope and construction of the provisions of Section 438 and since the question involved is one of wide application. I proceed to discuss the true scope and purport of the provisions of law in question.

3. It was seriously contended by learned counsel for the petitioner that a comparison of the language of Sections 437 and 439 of the Code on the one hand with that of Section 438 on the other will go to show that Section 438 can have no application in the event of an accusation having already been made against an accused. Section 437(1) begins with words "when any person accused of or suspected of the commission of any non-bailable offence is arrested or detained" and empowers the Court to grant bail in case of non-bailable offence in certain circumstances. Section 439(1) deals with the special powers of the High Court or Court of Session to grant bail to any person accused of an offence and in custody subject to imposition of such conditions as the Court considers necessary. Section 438 reads in these terms:–

"438(1) When 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 Session for a direction under this section; and that Court may if it thinks