The grant of anticipatory bail is dependent on the merits of the case, and the issuance of bailable warrants does not preclude the court from granting anticipatory bail.

JUDGMENT

Alka Sarin, J. (Oral). - Taken up through video conferencing.

2. This is a petition under Section 438 of the Code of Criminal Procedure, 1973 for grant of anticipatory bail to the petitioner in FIR No.RC CHG 2017A0023 dated 16.11.2017 under Sections 7, 8, 10, 13(1 )(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 registered at Police Station CBI, ACB, Chandigarh.

3. Learned counsel for petitioner would contend that the petitioner was posted as Senior Medical Officer, 32 Battalion, Border Security Force, Ajnala, District Amritsar and he was part of the Medical Board which was constituted for re-evaluation of the cases of the candidates who had been rejected by the Medical Board for recruitment to the Group 'B' and 'C posts of Water Wing of the Border Security Force. Learned counsel for petitioner would further contend that the allegations are that the Medical Board which assembled between 17.04.2017 and 21.04.2017, of which the petitioner was a member, and is alleged to have taken money to clear the medical of the candidates who stood rejected earlier by the Medical Board. Learned counsel has further contended that in the last three years the petitioner has been cooperating in the investigation and the respondents never required the custody of the petitioner. Learned counsel has further contended that on 14.12.2020, when the challan was filed, the petitioner had appeared before the Court. However, since the Presiding Officer was on leave, his presence could not be marked and the matter was put up before the Duty Magistrate of which the petitioner was not aware and bailable warrants were issued by the Duty Magistrate. Meanwhile, the application for anticipatory bail filed by the petitioner was also dismissed on 21.12.2020 by the Special Judge, CBI, Punjab. The petitioner apprehending arrest since the offences are non-bailable has approached this Court for grant of anticipatory bail.

4. Notice of motion.

5. On the asking of Court, Mr. Rajeev Anand, Special Public Prosecutor, CBI has put in appearance on behalf of the respondent-CBI through video conferencing and accepts notice. Learned counsel for the respondent has argued that since bailable warrants stood issued, the petition for grant of anticipatory bail was not maintainable. He also pointed out that there is an apprehension that the petitioner would tamper with the evidence and hence the anticipatory bail ought to be rejected. He has further referred to the order dated 21.12.2020 passed by the Special Judge, CBI, Punjab whereby the petitioner's application for anticipatory bail has been rejected primarily on the ground that the petitioner enjoys a position of influence and there was an apprehension that he may try to influence witnesses and tamper with the evidence and try to thwart the process of a fair trial.

6. I have heard the learned counsel for the parties.

7. In the present case, the allegations are pertaining to the period from 17.04.2017 to 21.04.2017. As per the case setup by the learned counsel for the petitioner, the petitioner has been cooperating with the investigating agency since 2017 and his judicial custody was not required till date. Counsel for the petitioner has further submitted that on 14.12.2020 the challan was filed and the petitioner was present. However, since the Presiding Officer was on leave, his presence was not marked and the matter was put up before the Duty Magistrate who issued bailable warrants.

8. First of all, dealing with the objection raised by counsel for the respondent that once bailable warrants have been issued by the Magistrate, a petition under Section 438 CrPC was not maintainable, a Division Bench of this Court in the case of 'Puran Singh Vs. Ajit Singh & Ors.' [1984 (2) RCR (Criminal) 532] laid down as under :-

"The main governing factor for the exercise of jurisdiction under Section 438, CrPC, 1973 is the apprehension of arrest by a person accused of the commission of a non-bailable offence. The section