A Magistrate has no jurisdiction to grant bail to an accused who is not in custody or jail when the bail application is moved. Section 438, Cr. P. C., which provides for anticipatory bail, has been repealed by U. P. Act No. 16 of 1976. Therefore, an accused cannot have an order of anticipatory bail from the Magistrates Court without surrendering actually.

PALOK BASIL AND R. K. MAHAJAN, JJ.

( 1 ) THE applicants, Kamlesh Parihar and Dr. J. S. Parashari, have filed this criminal revision against the order dated 31. 3. 1998 passed by the Sessions Judge. Pillbhit whereby he has allowed the application filed by the State of Uttar Pradesh and cancelled thefr bail, thus setting aside the order of the Chief Judicial Magistrate, Pilibhit dated 28. 1. 1997 granting bail to the applicants in case Crime No. 381 of 1996. P. S. Kotwali, District Pilibhit under Sections 420. 467. 468. 471, 409 and 120b, I. P. C. registered against them alleging embezzlement of Rs. l,03. 18,420. 85p. It has been further directed that both the applicants should be taken into custody and if both or either of the applicants is not present in Court, his sureties will produce him or them before the chief Judicial Magistrate on 6. 4. 1998. By an interim order dated 7. 4. 1998 passed by a learned single Judge when this revision was filed, the aforesaid direction of the Sessions Judge dated 31. 3. 1998 was meanwhile stayed which operates till date. During the pendency of this revision, counter-affidavits for the State of U. P. as well as for the C. B. I. have been filed to which rejoinder-affidavits have been filed by the applicants.

( 2 ) SRI J. S, Sengar, learned counsel for the applicants has been heard at substantial length in support of this revision. He has placed entire record including the impugned order, Magistrates order and all the averments incorporated in the respective affidavits filed by the parties. Shri girdhar Nath, learned standing counsel for the C. B. I, has been heard in opposition. Shri Upendra shukla, learned Additional Government Advocate has espoused the cause of the State of U. P.

( 3 ) THE facts lie in a narrow compass. Admittedly, a first information report has been lodged against the applicants on 30. 12. 1996 by the Director, Ayurveda and Unani Department alleging therein that the two applicants entered into a criminal conspiracy with Dr. Shiv Raj Singh, the then Director of Ayurved and Unani Directorate. U. P. , Lucknow and have misappropriated a sum of Rs. l,03,18. 420. 85p. It is strange that though this named F. I. R. was registered, the applicants were not arrested by the local police and no proceedings against them appear to have been taken by it. It transpires that in view of subsequent developments, the C. B. I, has taken over the investigation and according to the counter-affidavit filed by the C. B. I. , the charge-sheet is likely to be Tiled very soon. The aforesaid F. I. R. against the applicants is based upon a special audit report prepared after examining the records at the two centres run by Ayurved Directorate at district Pilibhit. The applicant No. 2 Dr. J. S. Parashari was admittedly the Principal of rajkiya Lalit Hari Ayurvedic College Evam Chlkitsalaya and was also looking after Lalit Hari aushadhi Nirman Shala and Kendriya Aushadhi Bhandar. Pilibhit. The applicant No. 1, Kamlesh parihar, was a clerk in the aforesaid college. It is alleged that according to the audit report, the applicant No. 2 went on drawing far more sum of money from the Treasury than the amount allocated under the budget. It is further stated that the applicant No. 2 did not have the power to make the purchases in the manner he did and further that most of the medicines that he purchased were substandard or adulterated. It is further alleged that Purchase Committee should have been convened by the applicant No. 2 for calling tenders from approved suppliers which was never convened. The applicant No. 1 is said to have helped in actual withdrawal of the amount. The applicants caused loss to the State exchequer to the lune of rupees one crore three lacs eighteen thousand and odd in conspiracy with the then Director, Dr. Shiv Raj Singh. Therefore, the prosecution allegation ts simple that the two accused-respondents have colluded with the Head of the Directorate at Lucknow and caused enormous loss to t