The power to grant anticipatory bail under Section 438, Code of Criminal Procedure, does not extend to cases where the Court has already taken cognizance of the offence and issued process.

JUDGMENT :

K.C. Jagadeb Roy, J. - The Petitioners have filed this application for anticipatory bail u/s 438, Code of Criminal Procedure. As borne out in the petition filed by them they are students prosecuting their studies in Jamshedpur and while coming to Rairangpur in a car had some altercation with the driver of a State Transport bus, who did not allow them to take over and obstructed the road by driving the vehicle in the middle of the road. This small instance resulted in chaos and the public intervened and ultimately Police came. The Petitioners were arrested by the police and later on released on bail. After investigation charge sheet has been filed against these two Petitioners under Sections 341, 332, 333 read with Section 34, I.P.C. in the Court of the learned Sub-Divisional Judicial Magistrate, Rairangpur, who has taken cognizance of the case and has issued summons to procure the attendance of the Petitioner in his Court.

2. The Petitioners apprehended that they being the residents of Bihar may be harassed in case of their surrender to the jurisdiction of the learned Sub-Divisional Judicial Magistrate and filed an application u/s 438, Code of Criminal Procedure for anticipatory bail before the learned Sessions Judge, Mayurbhanj. The Sessions Judge; Mayurbhaj rejected the application on the ground that since the charge sheet has been filed by the police in the Court after the investigation and the Court has taken cognizance of the case and summons were issued for their attendance in Court, there was no scope for the Petitioners to move petition for bail under, Section 438, Code of Criminal Procedure In so doing he relied on an overruled decision of the Andhra Pradesh High Court.

It is found from the order of the Sessions Judge, Mayurbhanj dt. 22.5.89 that the Sub-Divisional Judicial Magistrate, Rairangpur after receipt of the charge-sheet took cognizance, but the order sheet did not show for what offences the Court had taken the cognizance against the Petitioner.

3. The question of jurisdiction to entertain an application u/s 438, Code of Criminal Procedure has been raised in several, cases. A Full Bench decision of the Andhra Pradesh High Court reported in 1986 Cri.L.J. 1303 (Smt. Sheik Khasim Bi v. The State) relying upon the Division Bench decision of the Madhya Pradesh High Court reported in Ramsewak and Others Vs. State of M.P., and also a Bench decision of the Punjab High Court reported in Puran Singh Vs. Ajit Singh and Another, came to hold that filing of a charge sheet by the police and issuing warrant by a Magistrate do not put an end to the power to grant bail u/s 438(1), Code of Criminal Procedure and according to those High Courts, the High Courts have power to grant anticipatory bail u/s 438(1) to a person after the Criminal Court has taken cognizance of the case and has issued process, namely, warrant of arrest of that accused person.

4. In a recent Bench decision of this High Court their Lordships expressed their respectful disagreement with the aforesaid view of the Andhra Pradesh High Court and following the decision of a Single Bench of this High Court reported in 59 (1985) C.L.T. 110 (Mohan Behera and two Ors. v. State) and also in 51 (1981) C.L.T. 391 (Bhramar ' Bhramarbar Mohapatra and Anr. v. State of Orissa) have held that the prayer for application for anticipatory bail applies at a stage prior to arrest, when the person apprehends his arrest on being accused of committing a non-bailable offence. Once the person concerned is arrested or appears before the Court and the Court is in seisin over the matter and is then released on bail, the subsequent apprehension of his further arrest in the event of the matter being committed to the Court of Session, will not attract the operation of Section 438, Code of Criminal Procedure. The case which was before the Division Bench reported in Padma Charan Panda Vs. S. Ram Mohan Rao and Others, held that a complaint petition having been filed, after the 202, Code