The scope and applicability of Section 438 CrPC in granting anticipatory bail is limited to cases where the applicant has not yet surrendered before the Court and is apprehending arrest. Once the applicant has appeared before the Court and submitted to its jurisdiction, the remedy for seeking bail lies under Section 437 CrPC.

The petitioner herein has filed this application under S. 438, Criminal P.C., for grant of anticipatory bail in the event of his arrest in connection with a complaint Case No. 59 (C) of 1982 pending in the Court of the Judicial Magistrate First Class, Gauhati. While this petition was moved on 19-4-82, this Court granted ad interim anticipatory bail to the petitioner subject to his execution of a personal bond of Rs. 1,000/- on his appearance before the learned Judicial Magistrate First Class, Gauhati, by 20-4-82, in connection with the said complaint case. Thereafter, the matter came up for hearing on 13-5-82 and this Court heard the learned counsel for the petitioner, the learned counsel for the State and the learned counsel for the complainant opposite party. A prayer was made on behalf of the complainant for allowing him sometime to file affidavit in opposition. However, the prayer was granted. But, as the petitioner was released on bail in pursuance of this Court's order dt. 19-4-82, the Misc. case was disposed of with liberty to the complainant opposite party to file his affidavit in opposition and if necessary to rehear the matter again if substantial cause and legal grounds are shown as against the prayer for anticipatory bail.

2. On submission of the affidavit in opposition, the matter was further taken up for hearing and I heard the learned counsel for the parties on 11-8-82. But, the order could not be passed as I had to leave for Imphal to hold a Division Bench and thereafter also due to intervention of long vacation of the High Court.

To get the track of the case, it would be proper to state the facts very briefly which would facilitate to appreciate the respective rival contentions of the learned counsel of the parties in this triangular fight.

The facts:

3. The petitioner herein is the Deputy Superintendent of Police, Law and Order and is posted at capital complex, Dispur Police Station at Gauhati. The petitioner could learn that a complaint was filed against him by the opposite party (complainant) Sri Chanan Deka in the Court of the Judicial Magistrate First Class at Gauhati under Ss. 307/326/325/223/352/355/506, I.P.C., on an occurrence which was alleged to have taken place in the night of 8th/9th January, 1982. In the said complaint petition, the complainant alleged that he was assaulted by the petitioner while effecting his arrest. The complainant was produced before the Chief Judicial Magistrate, Gauhati, in connection with a case registered at the Police Station, Dispur, on 1-1-1982 against him on the basis of an information lodged by one Lohit Barman, Sub-Inspector of Police of Dispur Police Station under S. 3, Indian Explosive and Substance Act. The allegations and counter allegations of both the cases, namely, allegations made in the case filed by the complainant and the case registered in the Police Station at Dispur against the complainant, may not be of much importance to be stated in this case as it would not be at all relevant to dispose of the present petition.

4. In the present case, the learned Judicial Magistrate First Class, Gauhati, on taking cognizance of the case against petitioner, issued bailable warrant of arrest against him. The petitioner, however, did not know about issuance of such bailable warrant as it was not served upon the petitioner. The petitioner, thereafter, came to know that a non-bailable warrant of arrest was issued on 16-3-1982 against him. Therefore, in apprehension of arrest in view of such issuance of non-bailable warrant, the petitioner through his advocate moved an application before the learned Judicial Magistrate with a prayer to re-call the non-bailable warrant of arrest and for permission for representation through an advocate on 7th April, 1982, which was the date fixed for appearance of the accused. The prayer of the petitioner was turned down by the learned Judicial Magistrate. Therefore, the petitioner has approached this Court with this application under