The Magistrate does not have the power to issue non-bailable warrants against a person who has been granted anticipatory bail by the High Court. The Magistrate also cannot refuse to convert non-bailable warrants to bailable warrants under Section 70(2) Cr.P.C.

ORDER :

Sanjeev Prakash Sharma, J.

1. Learned counsel for the petitioners submits that the petitioners were granted anticipatory bail by this Court in the FIR registered against them bearing No. 3/2003 at Police Station Khetri, District Jhunjhunu under Section(s) 418, 420, 465, 467, 468, 471, 406 & 120-B IPC. The police submitted a Final Report whereafter protest petition was filed, which was dismissed. Against the dismissal order of the protest petition, a revision petition was filed, which was allowed by the learned Additional Sessions Judge, Khetri and the matter was remanded back to the Court to pass a fresh order on 18.7.2018, whereafter the learned Magistrate has taken cognizance on 11.1.2019 and summoned the petitioners through arrest warrants. The said order of remand was challenged by the petitioners before the High Court and the High Court had stayed the said proceedings. Taking into consideration the order of taking cognizance, the petition was declared infructuous.

2. Learned Magistrate thereafter again issued arrest warrants. Learned counsel for the petitioners submits that on coming to know about the arrest warrants, the petitioners moved an application informing that they are on anticipatory bail by the Court and also requested that the arrest warrants should be converted into bailable warrants in terms of Section 70(2) Cr.P.C., however, learned Additional Chief Judicial Magistrate, Khetri whereby its order dated 3.9.2020 has refused to convert the non-bailable warrants to bailable warrants on the premise that he does not have the power to convert the non-bailable warrants to bailable warrants as it would amount to refuse recalling its earlier order, which is barred in terms of Section 362 Cr.P.C. and has further issued arrest warrants on the same day. Learned counsel submits that issue has been finally decided and put it rest by the Larger Bench as to the tenure of the anticipatory bail in Sushila Agarwal & Others Versus State (NCT of Delhi) & Anr.; Special Leave Petition (Criminal) No(s). 7281-7282 of 2017 decided on 29.1.2020 by the Five Judges Bench and it has been held that the anticipatory bail granted by the Court shall continue till the end of the trial.

3. Learned counsel also relies on the judgment passed in the case of Inder Mohan Goswami & Another Versus State of Uttranchal & Others reported in AIR 2008 SC 251 to submit that in the ordinary course, non-bailable warrants ought not have been issued. It is not a case where the conditions laid down therein fall for the purpose of issuing non-bailable warrants. Learned counsel also submits that the petitioners are very old persons and taking into consideration the overall facts and the fact that the petitioners were already on anticipatory bail, the order passed is clearly illegal and without jurisdiction.

4. Learned counsel appearing for the complainant has opposed the aforesaid submissions.

5. I have considered the submissions as above.

6. In the case of Sushila Agarwal & Others (supra), the Supreme Court has laid down final conclusion as under:

"In view of the concurring judgments of Justice M.R. Shah and of Justice S. Ravindra Bhat with Justice Arun Mishra, Justice Indira Banerjee and Justice Vineet Saran agreeing with them, the following answers to the reference are set out:

(1) Regarding Question No. 1, this court holds that the protection granted to a person under Section 438 Cr. PC should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time. Normal conditions under Section 437 (3) read with Section 438 (2) should be imposed; if there are specific facts or features in regard to any offence, it is open for the court to impose any appropriate condition (including fixed nature of relief, or its being tied to an event) etc.

(2) As regards the second question referred to this court, it is held that the life or duration of an anticipatory bail order does not end normally at the time and stage when th