An application for anticipatory bail under section 438 of the CrPC is maintainable at post-cognizance stage of a case instituted on a police report or complaint after the Court issued process like a warrant of arrest for production of a person accused of having committed a non-bailable offence.

( 1 ) THIS Special Bench has been constituted to answer the following common questions raised in all these pending applications:?whether an application for anticipatory bail under section 438 of the Code of Criminal Procedure is at all maintainable at post cognizance stage of a case instituted on police report or complaint after the Court issued process like warrant of arrest for production of a person of having committed a non-bailable offence??- this Special Bench was constituted. ?

( 2 ) IN all the present applications, a prayer was made for anticipatory bail either after filing of the charge-sheet or after issuance of warrant of arrest by the Court in a particular proceeding or after process was issued by the Court after taking cognizance in complaint cases.

( 3 ) SUCH a question came up for consideration before a Division Bench of this Court in Sk. Alim and Ors. v. The State of West Bengal reported in 1993 C Cr. LR (Cal) 137 in which Their Lordships, referring to a decision of five Judges Bench of the Apex Court in Gurbux Singh v. State of Punjab reported in AIR 1980 SC 1632 held, inter alia, that prayer for anticipatory bail cannot be disallowed on the ground of submission of charge-sheet because it is not possible to import anything which is not in the section as thereby the liberty of a person may be jeopardized. It was also observed that such a course might be vulnerable constitutionally as indicated in Gurbux Singh's case (supra ).

( 4 ) THEREAFTER another Division Bench of this Court in 1995 C. Cr. LR (Cal) 244 (Sri Pankaj Lochan Sahoo and Anr.) took the similar view and came to a conclusion that section 438 of the Code can be invoked when any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, and it is immaterial whether such accusation is made because a case started by police or during an investigation initiated by police or the same has been made in a complaint filed before a Magistrate under section 200 of the Code. Accordingly, it was concluded--?. . . . . . . . So, it is clear 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 pray for anticipatory bail under section 438 Cr. PC. It would be going against the law to say that such a remedy is available only in a police case. In view of the above legal position, we are of the view that such an application under section 438 Cr. PC is maintainable in connection with the complaint case where there is an accusation that the petitioner has committed a non-bailable offence. . . . . . . ?

( 5 ) BUT the same question again came up for consideration before another Division Bench of this Court in Bimal Adak and Others v. State, reported in 1997 C. Cr. LR (Cal) 72 and a view was taken that the right of the petitioner to move for anticipatory bail comes to an end after submission of charge-sheet. In the said judgment, the Division Bench without referring the matter to a Special Bench, in view of the contrary decision given by earlier Division Benches of co-ordinate jurisdiction, relied upon the three Judges' Bench decision of the Apex Court in Salauddin Abdul Samad Sheikh v. State of Maharashtra reported in 1996 SCC (Cri) 198, and ultimately concluded that the petition for anticipatory bail was not maintainable after the filing of the charge-sheet.

( 6 ) SINCE there were diverse views expressed by the Division Benches of this Court, the question ultimately referred to the Special Bench for consideration.

( 7 ) MR. Dilip Dutta, Mr. S. S. Roy and Mr. Milan Mukherjee appearing on behalf of some of the petitioners citing different case laws made separate arguments in support of the contention that the above question is to be answered in the affirmative. On the other hand, Mr. Subhasish Ray, Mr. Sudipto Moitra, Additional Public Prosecutor and Mr. Kazi Safiullah, Public Prosecutor separately appearing on behalf of so