An application for anticipatory bail under Section 438 of the CrPC is maintainable even when the Magistrate has issued summons in respect of non-bailable offenses. The grant of anticipatory bail depends on the merits of the case and not solely on the Magistrate's decision to issue summons.

( 1 ) IN this application preferred under Section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), the moot question that arises for consideration is whether an application of this nature is maintainable when a Court taking cognizance on a complaint or a prosecution report in respect of non-bailable offence issues summons to the accused.

( 2 ) THE facts as have been unfurled are that, the State of M. P. through Forest Range Officer, North Lamta (General), Northern Forest Division, Distt. Balaghat filed a criminal complaint under Section 190 (c) of the Code for offences punishable under Sections 26 (1) (Ga) (Cha), 41 (2) (Kha) (Ga) (Gha), 42 and 69 of the Indian Forest Act 1927 and under Rules 23 and 29 of M. P. Vanopaj Abhiyan Gaman Niyam 1961 and under Section 4 of M. P. Kast Chiran (Viniyaman) Act, 1984 as well as under Sections 379, 420, 468 and 471 of the Indian Penal Code in the Court of Judicial Magistrate First Class, Balaghat wherein it was registered as criminal case No. 105/99. After its registration the learned Magistrate applied his mind and issued summons to the petitioner and other six accused persons.

( 3 ) AFTER receiving the summons as the petitioner had a reasonable apprehension that if he appears before the Court, he would be taken into custody and would face humiliation and be tortured, he filed an application for grant of anticipatory bail in the Court of Session at Balaghat, which was dealt with by Second Additional Sessions Judge, Balaghat. The learned Sessions Judge after taking note of the fact came to hold that as summons had been issued the petition was not entertainable. That apart, he also noticed various other aspects to reject the prayer for grant of anticipatory bail. Hence, this application for grant of anticipatory bail.

( 4 ) MR. Pranay Gupta, learned counsel for the petitioner has contended that though summons has been issued the offences are non-bailable and the petitioner has apprehension he might be arrested and taken into custody, an application under Section 438 of the Code is maintainable. In support of his submission he has placed reliance on the decision rendered in the cases of Ramsewak Jeevanlal v. State of Madhya Pradesh, 1980 MPLJ 100 : (1979 Cri LJ 1485) and B. L. Verma v. State of M. P. , 1979 MPLJ Short Note 11 : (1979 Cri LJ (NOC) 190 (MP ). It is also submitted by him that the allegations against him are that Forest Range Officer seized certain quantity of wood from the possession of the co-accused Ram Singh and on an inquiry being conducted, he came to find out that the petitioner along with other co-accused persons had felled trees from the Government land and carried it to the firm of the co-accused Fulle and thereafter, showing the alleged wood as that of Fulle obtained transit permit from Sarpanch Dilip Singh, who has also been arrayed as a co-accused, and such allegations do not constitute the offences against him and show the mala fide attitude of the Officer to rope him in the present crime. MISS Maya Verma, learned Panel Lawyer for the State resisted the application for grant of anticipatory bail, has contended that when the summons is issued an application for anticipatory bail is not maintainable. It is her further submission that forest offences being rampant in the State and there being concrete allegations against the petitioner, he should not be extended the privilege of anticipatory bail.

( 5 ) TO appreciate the rival submissions raised at the Bar, it is apposite to refer S. 438 of the Code, which reads as under :"438 (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this Section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. (2) When the High Court or the Court of Session makes a direction unde