SUBRATA TALUKDAR, J.

By way of this application under Section 439 (2) read with Section 482 of the Code of Criminal Procedure, 1973 (for short Cr. P.C.) the petitioner challenges the order dated 4th April, 2014 passed by the Ld. Sessions Judge, Jalpaiguri in Criminal Misc. Case No. 1006 of 2014 corresponding to Kotwali Police Station Case No. 274 of 2014 dated 23rd March, 2014 under Sections 448/323/354/385 of the Indian Penal Code (for short IPC).

By the order dated 4th April, 2014 the Ld. Sessions Judge was pleased to, inter alia allow an application for anticipatory bail filed under Section 438 Cr. P.C. by the present OP2-accused in connection with the said case. Noticing the submission of the Ld. Advocate for the OP2-accused and the Ld. Public Prosecutor that the disputes between the present petitioner-complainant and the OP2 is civil in nature in respect of which a civil suit is pending between the parties and the prayer for anticipatory bail was not opposed by the Ld. Public Prosecutor, such prayer stood allowed. The OP2-accused was directed to be released on furnishing a bail bord upon compliance with the provisions of Section 439(1) Cr. P.C. with the further direction that he shall surrender before the Ld. Magistrate within 15 days from the date of the said order.

Shri Shekhar Basu, Ld. Senior Counsel appearing for the petitioner-complainant, while praying for cancellation of the order of anticipatory bail granted by the Ld. Sessions Judge raises at the threshold a jurisdictional issue before this Court.

Shri Basu points out that the order granting anticipatory bail is the foundational order and the subsequent order of bail granted by the Ld. Magistrate under Section 437 Cr. P.C. pursuant to an order under Section 438 Cr. P.C. is consequential to the foundational order.

Taking this Court to the several provisions pertaining to grant of bail under the Cr. P.C. Shri Basu submits that in this petition praying for cancellation of bail challenge has been thrown to the foundational order dated 4th April, 2014 of anticipatory bail and such foundational order can only be assailed before a Division Bench of this Court under Section 439 (2) Cr. P.C.

In support of his submissions Shri Basu relies upon the following decisions:-

Shri Gurbaksh Singh Sibbia & Others vs. State of Punjab, 1980 (2) SCC 565, Siddharam Satlingappa Mhetre vs. State of Maharashtra & Others, 2011 (1) C Cr LR (SC) 488 Damayanti Majhi vs. State of West Bengal & Another, 2002 C Cr LR (Cal) 823, In Re: Deepika Samanta (CRM 3418 of 2003) 2004 (1) CHN 58.

Drawing the attention of this Court to the decision in Damayanti Majhi (supra) Shri Basu points out to paragraph 13 thereof which reads as follows:-

“13. If the order by which anticipatory bail was granted to O.P. No. 2 is found to be bad and illegal for lack of jurisdiction, the consequential relief subsequently granted to the O.P. No. 2 the Sessions Judge in the form of regular bail under subsection (1) of Section 439 of the Code is equally bad and illegal. Furthermore, the O.P. No. 2 was not in custody when such order under Section 439(1) was passed. No application under sub-section (1) of Section 439 of the Code is maintainable unless the applicant is in custody. In R.C. Goel vs. State of West Bengal, 2002 C Cr LR (Cal) 83 a Division Bench of this Court has already expressed the same view relying upon certain decisions of the Apex Court apart from the decisions of the Privy Council and other High Courts. Therefore, the learned Sessions Judge ought not to have entertained the application at the instance of the O.P. No. 2 under sub-section (1) of Section 439 for granting him bail as at that point of time O.P. No. 2 was not detained in any custody.

Therefore, the order passed by the learned Sessions Judge granting regular bail under sub-section (1) of Section 439 of the Code is equally bad and in excess of jurisdiction.”

Further drawing the attention of this Court to In Re: Deepika Samanta (supra) Shri Basu points