JUDGMENT :

Manoj Kumar Tiwari, J.

The question which falls for consideration by this Larger Bench is whether an application for anticipatory bail is maintainable after charge sheet has been filed in the Court?

2. It transpires that a learned Single Judge of this Court had referred the aforesaid question to a Larger Bench vide order dated 17.08.2022. The said question was answered in the affirmative by a Division Bench vide order dated 7.9.2022. Learned Single Judge, however, was of the opinion that the issues raised in the order of reference have not been considered and then the question was again referred to Larger Bench vide order dated 28.9.2022, passed in ABA/76/2021 and connected matters. Thus, the issue is now before a Full Bench.

3. Since the question was earlier answered by a Division Bench, therefore, before proceeding in the matter, it would be worthwhile to peruse the second order of reference dated 28.9.2022, which is extracted below:

“The following question was referred by this Bench to the Larger Bench on 17.08.2022:-

“Whether an application for anticipatory bail is maintainable after the charge sheet has been filed in the court?”

2. While making the reference, this Bench had taken note of the provision of Sections 46 and 438 of the Code of Criminal Procedure, 1973, Law Commission’s 41st Report, the principles of law as laid down by the Hon’ble Supreme Court in the case of Shri Gurbaksh Singh Sibba and others v. State of Punjab , (1980)2 SCC 565 , Satender Kumar Antil v. Central Bureau of Investigation and another , (2021) 10 SCC 773 and Sushila Aggarwal and others v. State (NCT of Delhi) and another , (2020) 5 SCC 1 . In paragraph 22, 23 and 25 of the order dated 17.08.2022, this Court noted as hereunder:

“22. In view of the judgment in the case of Satender Kumar Antil (supra), after charge sheet is filed and cognizance is taken for offences under category ‘A’, bail application of such accused, on appearance, may be decided without the accused being taken into physical custody. It means, in such matters, the accused has no apprehension of his being taken into custody. Does it mean that for this category of cases, Section 438 of the Code is not applicable at all?

23. If cognizance is taken and still anticipatory is maintained in the specified court, would not it impliedly interfere with the order summoning the accused? And if it so, is it the legislative intent for enacting Section 438 of the Code?

25. Recently, in the case of Sushila Aggarwal and others v. State (NCT of Delhi) and another , (2020) 5 SCC 1 , the Hon’ble Supreme Court observed that the anticipatory bail is maintainable till charge sheet is filed and in para 7.1, the Hon’ble Supreme Court observed as hereunder:-

“7.1. At the outset, it is required to be noted that as such the expression “anticipatory bail” has not been defined in the Code. As observed by this Court in Balchand Jain [Balchand Jain v. State of M.P., (1976) 4 SCC 572 : 1976 SCC (Cri) 689], “anticipatory bail” means “bail in anticipation of arrest”. As held by this Court, the expression “anticipatory bail” is a misnomer inasmuch as it is not as if bail is presently granted by the court in anticipation of arrest. An application for “anticipatory bail” in anticipation of arrest could be moved by the accused at a stage before an FIR is filed or at a stage when FIR is registered but the charge-sheet has not been filed and the investigation is in progress or at a stage after the investigation is concluded. Power to grant “anticipatory bail” under Section 4 38 CrPC vests only with the Court