Accused No.10 in Crime No.562 of 2006 of Kayamkulam Police Station has filed this Bail Application under Section 438 of the Code of Criminal Procedure.

2. The offences alleged against the petitioner and the other accused persons are under Sections 143, 144, 147, 148, 149, 323, 324, 302 and 120B of the Indian Penal Code, Section 7(b) and 27(2) of the Arms Act and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

3. Learned Public Prosecutor submitted that the charge was laid in the case on 9.12.2008. It would appear that non-bailable warrant was issued by the Judicial Magistrate of the First Class, Kayamkulam against the petitioner. The learned Public Prosecutor submitted that the appropriate remedy of the petitioner would be to move the court which issued the non-bailable warrant.

4. Learned counsel for the petitioner relied on the decision of the Supreme Court in Bharat Chaudhary v. State of Bihar ( (2003) 8 SCC 77 = (2003 (3) KLT 956 (SC)) and contended that an application for anticipatory bail is maintainable even after the charge sheet is filed. In paragraph 7 of the judgment, the Honourable Supreme Court held thus:

"From the perusal of this part of S.438 of the Crl.P.C., we find no restriction in regard to exercise of this power in a suitable case either by the Court of Sessions, High Court or this Court even when cognizance is taken or charge sheet is filed. The object of S.438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The fact, that a Court has either taken cognizance of the complaint or the investigating agency has filed a charge sheet, would not by itself, in our opinion, prevent the concerned courts from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the concerned courts while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of charge sheet cannot by themselves be construed as a prohibition against the grant of anticipatory bail. In our opinion, the courts ie., the Court of Sessions, High Court or this Court has the necessary power vested in them to grant anticipatory bail in non-bailable offences under S.438 of the Crl.P.C. even when cognizance is taken or charge sheet is filed provided the facts of the case require the Court to do so."

The Supreme Court in Bharat Chaudhary's case also held that the decision in Salauddin Abdulsamad Shaikh v. State of Maharashtra ((1996) 1 SCC 667) could not be read as prohibiting the grant of anticipatory bail under Section 438 of the Code of Criminal Procedure in a case where charge sheet is filed.

5. In (1996) 1 SCC 667, it was held that ordinarily the Court dealing with anticipatory bail application should not substitute itself for the original court which is expected to deal with the offence and it is the latter court which has to consider whether, having regard to the material placed before it, the accused person is entitled to bail.

6. It is true that going by the decision in Bharat Chaudhary's case, there is no bar in entertaining an application under Section 438 of the Code of Criminal Procedure after the charge sheet is filed. However, it is not a general rule that the power under Section 438 of the Code of Criminal Procedure could be exercised in each and every case, where charge sheet is filed. Exceptional circumstances may arise in which exercise of the power by the Sessions Court or the High Court under Section 438 may be warranted and the fact that the charge sheet was filed in the case would not be a bar to entertain such an application under Section 438 of the Code of Criminal Procedure. Ordinarily, when a charge sheet is filed, it is for the Court which has to try the case that has to deal with the