The High Court or the Sessions Court has the jurisdiction to grant anticipatory bail even after the Magistrate has issued a bailable or non-bailable warrant.

I.S.TIWANA, J.

1. Whether it is mandatory for a Magistrate deciding to proceed against an accused on taking cognizance of a non-bailable offence on a complaint to issue bailable warrant in the first instance irrespective of the fact that the, accused has not obtained anticipatory bail under S.438 of the Cri P.C. is the precise question posed before us for answer on a reference. Though it is not necessary to advert to the detailed factual matrix of the case in order to answer the purely legal question noted above yet a brief reference to the following facts is called for to unravel the controversy raised.

2. On 24th Oct. 1982, Ajit Singh lodged First Information Report No.212 with Police Station Fatehgarh Churian, District Gurdaspur, about the murder of his son Baljinder Singh alias Balwinder Singh and amongst others accused the present petitioner Puran Singh on that account. As a result of the investigation that followed, the police found Puran Singh innocent and mentioned his name in column No.2 of the challan papers which were submitted to the Court under S.193 of the Code. On 2nd Feb. 1983, Ajit Singh respondent filed a complaint under S.302/34, Penal Code, and arrayed Puran Singh petitioner as one of the accused. The Judicial Magistrate 1st Class, Batala, after recording preliminary evidence in support of the averments made in the complaint decided to summon the petitioner through non-bailable warrant. The petitioner approached the Additional Sessions Judge, Gurdaspur, for anticipatory bail but the latter declined it in view of the observations made by this Court in Ram Lal V/s. State of Punjab 1976 Chand LR (Cri) 388 wherein it is ruled that even in cases where a Magistrate chooses to summon the accused on a complaint through bailable warrant "the question of the Sessions Court or the High Court granting anticipatory bail does not arise as the Magistrate concerned has already applied his mind and issued bailable warrant". This order of the learned Additional Sessions Judge necessitated for petitioner to approach this Court for anticipatory bail.

3. At the time of hearing the primary contention raised before the learned Single Bench was that the trial Magistrate could only summon the petitioner by issuing bailable warrant and not non-bailable warrant and reliance for this stand was placed on the observations made in Balwant Singh V/s. State of Punjab (1983) 1 Chand LR (Cri) 473 wherein on facts similar to the case in hand it is said in the context of later part of sub-sec.(3) of S.438 of the Cri P.C. as follows :-

"Reliance has been placed by Mr. Sharma on sub-sec.(3) of S.438 of the Code. It is constituted of two parts. The first part which concerns about the taking of the accused in custody is not attracted for application. The second part which is relevant is and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-sec.(1). This enjoins upon the Magistrate, when he, exercising jurisdiction after taking cognizance of the case, decides to summon the accused he has to issue a bailable warrant in the first instance. The bailable warrant has to be issued irrespective of the fact whether the offence is bailable or non-bailable. The making of this provision regarding the issue of a bailable warrant in Chap. XXXIII of the Code, which concerns provisions as to bail and bonds, has a special meaning in the form of a mandate to the Magistrate that unmindful of the nature of the offence he shall issue a bailable warrant, at the first instance. This provision is mandatory and it cannot be by-passed or misconstrued."

And again, "The Magistrate in the case in hand in the first instance acted in complete disregard of this provision in issuing non-bailable warrant." We might have dismissed this petition as infructuous as Mr. R.S. Ahluwalia, the learned counsel for th