S. 438 of the Code of Criminal Procedure can be invoked only when the accused is apprehending arrest and does not take within its sweep the case of an accused against whom the Criminal Court has already issued process by taking cognizance of the offence.

G. B. PATNAIK,J.

( 1 ) THE complainant is the petitioner who challenges the order of the learned Sessions Judge, Ganjam dated 12-3-1980 by which order the accused-opposite parties were released on bail obviously in exercise of powers conferred under S. 438, Cr. P. C. since the accused persons apprehended arrest in course of the committal proceedings for being committed to the Court of Session. When the case was heard on 30-11-81, a learned single Judge of this Court was of the view that the case be heard by a Division Bench. Accordingly this revision has been placed before the Division Bench for disposal.

( 2 ) THE short facts leading to the grant of bail by the impugned order are that on the basis of an F. I. R. lodged by the petitioner, the police registered a case and after completion of investigation submitted a final report on the ground that culprits could not be detected. The petitioner filed a protest petition which was treated as a complaint and the complainant's initial statement was recorded. Thereafter the Magistrate conducted an enquiry under S. 202, Cr. P. C. and then took cognizance under Ss. 149/324/337 and 296, I. P. C. as well as under Ss. 3 and 4 of the Explosive Substances Act and issued summons against the accused persons. The accused persons appeared before the Magistrate on 18-2-80 and on their prayer, were released on bail. While the matter was thus proceeding before the Magistrate the opposite parties who are the accused persons apprehending that the case may be committed to the Court of Session and they may be again taken into custody filed an application before the learned Sessions Judge under S. 438, Cr. P. C. praying for an anticipatory bail in case the matter is committed to the Court of Session for trial. By the impugned order the learned Sessions Judge allowed the prayer of the opposite parties and ordered that in the event of committal the accused persons would be released on bail of Rs. 2,000/- each with one surety each for the like amount to the satisfaction of the learned Magistrate, First Class, Surada. The complainant-petitioner has impugned the aforesaid order of the learned Sessions Judge in the present case.

( 3 ) THE learned counsel for the petitioner contends that once the accused persons appeared before the learned Magistrate pursuant to summons and were released on bail, obviously the said order of release is one under S. 437 of the Code of Criminal Procedure. In such circumstances, provisions of S. 438 of the Code of Criminal Procedure cannot have any application and the learned Sessions Judge therefore, had no jurisdiction to grant an order of anticipatory bail invoking his jurisdiction under S. 438, Cr. P. C.

( 4 ) MR. Mohapatra, the learned counsel for the opposite parties, on the other hand contends that there is no limitation with regard to the time or stage at which a person accused of committing a non-bailable offence can invoke the jurisdiction of the Court under S. 438, Cr. P. C. If the person concerned has apprehension and he reasonably believes that he may be arrested of an accusation of having committed a non-bailable offence then he can invoke the provisions contained in S. 438, Cr. P. C. , even at the stage of committal proceedings. In that view of the matter, the learned Sessions Judge was fully justified in passing the impugned order. To appreciate the correctness of rival submissions it would be profitable to note the objects for which S. 438, Cr. P. C. was brought into the statute and the mischief which was sought to be remedied. The 41st Report of the Law Commission dealt with this aspect and Chap. XXXIX of the said Report deals with bail. The expression "anticipatory bail" has not been used in the statute but the Commission in its report nomenclatured the said provision for bail as anticipatory bail and observed : the suggestion for directing the release of a person on bail prior to his arrest (commonly known as "anticipatory bail") was carefully considered