The power of the Court of Sessions and High Court to grant anticipatory bail under Section 438 Cr.P.C. is not restricted to offences triable exclusively by the Court of Sessions or the mode of summoning the accused.

1. - Present petition has been filed under Section 439(2) Criminal Procedure Code. read with Section 482 Criminal Procedure Code. praying that the order dated 13th August, 2014 passed by this Court in S.B. Crim. Misc. Bail Application No.4855/2014 whereby pre-arrest bail was granted to the respondent Krishan Baldev and Mamchand Joshi be cancelled.

2. It will be apposite here to reproduce the above order against which grievance has been made by the petitioner-complainant:-

"Lawyers are stated to be on indefinite strike.

Present application has been filed under Section 438 Cr.P.C. for grant of pre-arrest bail to the petitioner in a case arising out of FIR No.110/2006, registered at Police Station, Govindgarh Distt. Alwar for offence punishable under Sections 409 and 120-B IPC.

Petitioners appearing in person have submitted that the above said FIR was investigated and the investigation agency after thorough investigation found the petitioners to be innocent and submitted a final report in negative form. It is contended that thereafter the complainant filed a protest petition and pursuance thereof petitioners have been summoned to stand trial by issuing arrest warrant. Reliance has been placed on the law laid by the Hon'ble Apex Court in Inder Mohan Goswami & Anr. v. State of Uttaranchal & Ors. 2007(12) SCC 1 to contend that the Court taking cognisance ought not to have issued arrest warrant at the first instance.

As per the petitioners, petitioner No.1 Krishan Baldev is aged 78 years whereas petitioner No.2 Mamchand Joshi is aged 72 years.

Considering the age of the petitioners and the fact that they have been summoned to stand trial after the investigating agency had submitted a final report in negative form, this Court is of the view that arrest of the petitioners will serve no useful purpose as nothing is to be recovered from them.

Consequently, the present application is disposed of with a direction that in case, petitioners within ten days, from today, appear before the Court which has summoned them to stand trial, upon appearance the said Court shall accept the bail bonds to be furnished by the petitioners to its satisfaction and the bail bonds so furnished by them shall ensure during pendency of trial."

3. Petitioner-complainant appearing in person has primarily submitted that since respondent No.2 and 3 were summoned by the trial Judge by issuing bailable warrants, there was no apprehension of arrest to the accused and, therefore, they could not be granted pre-arrest bail under Section 438 Cr.P.C. It is contended that provision of Section 438 Cr.P.C. are attracted only when non-bailable warrant is issued.

4. The controversy raised in the present petition is not new to the Courts. A Single Judge Bench of Punjab & Haryana High Court after formulating a question "whether in case where accused have been summoned to stand trial by issuing a bailable warrants, anticipatory bail is maintainable or not" has referred the same to the Larger Bench.

5. A Division Bench of Punjab & Haryana High Court in Puran Singh v. Ajeet Singh 1985 Criminal Law Journal Page 897 has held as under:-

"6. So far as Ram Lal's case (1976) Chand LR (Cri) 388 (Punj & Har) (supra) is concerned though I find that there is a material difference between the facts of that case and the instant I case yet 1 am of the view that the conclusion recorded therein that the Courts specified in Sub-section (1) of Section 438, Cr.P.C. have the jurisdiction to grant anticipatory bail only till the time an order is passed by a Magistrate Under Section 204, Cr.P.C., issuing bailable or non-bailable warrant against the person sought to be summoned is difficult to be sustained. That was a case where the person sought to be summoned through bailable warrants on a complaint made against them Under Section 302/34 Penal Code had secured anticipatory bail Under Section 438(1), Cr.P.C. One of the considerations which prevailed with the Sessions Judge for the grant of anticip