VIPIN SANGHI, J.

1. The present is a reference received from the learned CMM (North West), Rohini Courts, Delhi under section 395(2) Cr PC.

2. Before setting out the questions of law raised by the learned CMM, we may set out the background in which the said questions of law have been referred for decision of this Court. Nitin Kumar Aggarwal is one of the accused in case FIR 136/2013, PS EOW. His anticipatory bail application under section 438 Cr PC was dismissed by this court on 30.05.2017.

Despite the said dismissal, he was not arrested and he had been charge sheeted under section 406/420/120B IPC without arrest, vide charge sheet/ final report filed on 23.08.2017. Cognizance of the offence was taken by the learned Magistrate on 30.08.2017 qua all the accused, including Nitin Kumar Aggarwal. Once summoned, the accused moved the application to seek bail under Section 437 Cr P.C. The learned CMM was dealing with that application moved by the said accused for release on regular bail under Section 437 Cr.P.C.

3. That aforesaid application for bail was opposed by the complainant. The complainant moved an application for issuance of non bailable warrants, and for a direction to the Investigating Officer (IO) to arrest the accused Nitin Kumar Aggarwal. The court called for a report from the IO, who filed the report dated 21.12.2017. The said report disclosed that two other accused in the case were arrested, but were later released on bail by the court. So far as Nitin Kumar Aggarwal is concerned, he moved an application to seek anticipatory bail under section 438 Cr PC. Vide order dated 04.12.2014, he was granted interim protection against coercive action. By the subsequent order dated 03.07.2015, the said interim order was made absolute and the application for grant of anticipatory bail was favourably disposed of. However, subsequently, the said order was recalled and vacated on 25.05.2017 and the petition for anticipatory bail of Nitin Kumar Aggarwal was dismissed on 30.05.2017.

4. In his report, the IO stated that the investigation in the case had been completed and Nitin Kumar Aggarwal was not arrested as his arrest was not required at that stage. There was no direction by this Court - in its order dated 30.05.2017, to arrest Nitin Kumar Aggarwal. He was formally arrested after the anticipatory bail application was disposed of, and was released on bail as per law. Nitin Kumar Aggarwal had joined the investigation as and when required, and it was of no use to arrest Nitin Kumar Aggarwal twice.

5. In the order of reference, the learned CMM has taken note of the decision of this Court in a decision of a Ld. Single Judge of this Court in Court on its Own Motion v. C.B.I, 2004 (72) DRJ 629 (referred to as Court on its own motion (1)) and “Court on its Own Motion v. State (Manu/DE/3926/2017 also reported as 243 (2017) DLT 373 (DB) (referred to as Court on its own motion (2)) decided by a Division Bench of this Court. We shall refer to these decisions a little latter in our opinion.

6. The learned CMM before framing the questions of law on which the decision of this court is sought, observed as follows:

“The question that arises for consideration is for what purpose, the accused is to be sent in JC at this stage of proceedings, and if he is sent in JC, then for how long?

If the ratio of the judgments in the matter of Courts by its Own Motion (Supra) to be applied, there is no discretion left with this court, but to release the accused on bail, but, at the same time, the fact of dismissal of anticipatory bail by Hon’ble Delhi High Court cannot be ignored. Thus, this court thinks it fit to make a reference u/s 395 (2) Cr.P.C on the following points”

7. In the aforesaid background, the following questions of law have been referred to this court for our consideration:

“(A) Whether, in the given facts, this court needs to refer to the order of Hon'ble Delhi High Court rejecting the anticipatory bail application, while considering regular bai