Heard Sri Akhileshwar Prasad Singh, learned Senior counsel for the petitioners in Cr. Misc. No. 24521/2017 and Cr. Misc. No. 24597/2017, as also Sri Nityanand, Advocate, in Cr. Misc. No. 24730/2017 and the respective learned Additional Public Prosecutor for the State. The petitioners in first two cases are facing prosecution under Sections 323 & 406 I.P.C. whereas the petitioner in third case is charge-sheeted, cognizance under Sections 147, 148, 323, 324, 325, 307 & 379 of the Indian Penal Code had been taken as back as in the year 2004 and process was issued against him.

2. All these three Anticipatory Bail applications involve a common question as to whether the benefit of Anticipatory Bail may be allowed to an accused against whom process under Sections 82 & 83 of the Code of Criminal Procedure Code (in short the “Code”) has been issued? The accused, in all these cases, instead of submitting themselves to the jurisdiction of the learned Magistrate who has issued process under Section 82 & 83 of the Code, as the case may be, is seeking Anticipatory Bail. For the purpose of answering this issue, I need not go into the merit of the case unless the petitioners in these cases succeed on the point mentioned above, this Court would have no occasion to decide the Anticipatory Bail application on merit. It is admitted position in all these cases that after taking cognizance the learned Magistrate issued summons and thereafter warrant for appearance of the accused, the accused did not appear, then, steps were taken for attachment and declaring them a proclaimed offender in terms of Sections 82 & 83 of the Code. After passing of the order under Sections 82 & 83 of the Code, only the accused petitioners approached the Court of learned Sessions Judge for grant of Anticipatory Bail, having been unsuccessful before the learned Sessions Judge, the petitioners have moved this Court seeking the same benefit.

3. Sri Akhileshwar Prasad Singh, learned Senior counsel for the petitioners, has drawn my attention towards the statement made in paragraph-11 of the application being Criminal Miscellaneous Case No. 24521/2017, and submitted that the petitioners did not receive any summon and had no knowledge about the order taking cognizance. Similar statements have been made in paragraph-11 of Criminal Miscellaneous Case No. 24597/2017. In Criminal Miscellaneous Case No. 24730/2017, the petitioner has made a statement in paragraph-7 that the process under Section 82 of the Code was issued against the petitioners, but the same was not executed till 28.09.2016. There was no knowledge of the present case or about passing of the order under Section 82 and subsequently under Section 83 of the Criminal Procedure Code.

4. The submissions of the learned Senior counsel for the petitioners in first two cases and the learned counsel in the third case would be that this Court may go into the correctness of the order issuing process under Sections 82 & 83 of the Code, and on being satisfied that those orders are not legal and valid, and/or, have been passed in violation of the procedure established by law, this Court can exercise its jurisdiction under Section 438 of the Code.

5. I am afraid the submission advanced on behalf of the petitioners cannot be accepted, as according to this Court testing the legality and validity of an order passed in a criminal proceeding sitting in its jurisdiction under Section 438 of the Code would not be just and proper. The scope and ambit of Section 438 Cr.P.C. has been well discussed by the Constitution Bench of Hon’ble Supreme Court in Gurbakash Singh Sibbia Vs. State of Punjab since reported in (1980) 2 SCC 585. The petitioners have got remedy against an illegal order passed in a criminal proceeding and could have been well advised to seek remedy in accordance with law.

6. The Hon’ble Apex Court in the case of Lavesh Vs. State (NCT of Delhi) since reported in (2012) 8 SCC 730; while considering the case as to proper exerc