U.L. Bhat, C.J. -- 1. This is an application for anticipatory bail under section 438 Cr.P.C. filed by two accused in a private complaint alleging commission of offence under section 302 I.P.C read with Sec. 34 I.P.C. The learned Single Judge who admitted the petition directed issue of notice to the State and further directed that in the meantime the applicant shall not be arrested until further orders. One of us (Bhat, C.J.) who heard the matter at a subsequent stage doubted the maintainability of the application and also the legality of the interim order and referred the matter to a Division Bench. The Division Bench was of the opinion that the latter should be examined by a Full Bench and accordingly reference has been made. That is how the matter has come before us.

2. The police registered a case against two accused on the information furnished by the complainant. After investigation, charge-sheet has been filed against the two accused. Thereafter, the first informant filed a private complaint before the Court concerned alleging that he had laid information with the police against seven persons, but information was recorded only against two persons and this was done so to help the other persons to escape the process of law. The complaint was, therefore, directed against the remaining five persons. The learned Magistrate recorded the sworn statement of the complainant and the statements of other witnesses produced, took cognizance and directed issue of non-bailable warrant against the five 'accused under Sec. 204 of the Code of Criminal Procedure, 1973 (for short 'the Code'). Thereafter, two among the five accused have filed the present application under section 438 Cr.P.C.

3. Learned Additional Advocate General appearing for the State contended that an order of anticipatory bail under section 438 Cr.P.C. can be passed only as long as the competent criminal Court has not taken cognizance or issued process and once the Court has done so, there is no jurisdiction surviving under Sec. 438 of the Code. He places reliance on a decision of a learned Single Judge of the Rajasthan High Court in Rawat Dan v. State of Rajasthan (1975 CrLJ 691). On the other hand, Shri S.L. Kochar, learned counsel for the petitioner and Shri S.C. Datt, Advocate, appointed amicus curiae, submitted that the decision of the Rajasthan High Court has not been followed by the other High Courts, that an earlier decision of the Punjab and Haryana High Court taking a similar view was overruled by a Division Bench of the Punjab and Haryana High Court, and that the High Court of Andhra Pradesh and this Court itself have taken a view contrary to the view taken by the Rajasthan High Court. Both sides have taken us through the relevant provisions of the Code in support of their respective contentions on the question of maintainability of the application.

4. In the case of Rawat Dan v. State of Rajasthan (1975 Cri.L.J. 691), since no action was taken on the first information lodged by the complainant, he filed a private complaint in Court which was sent to the police for investigation and ultimately the police reported the case as false. The Court declined to accept the said report and conducted an inquiry, took cognizance and issued process. The accused appeared in Court and obtained bail. At a subsequent stage, the accused apprehended that the case may be committed to the Court of Sessions and they may be remanded to custody during and until conclusion of the sessions trial and riled an application under Sec. 438 of the Code. The learned Judge took the view that the Court exercising jurisdiction under Sec. 438 Cr.P.C. had no jurisdiction to take bail from an accused who is not in custody in the event of the case against him being committed to the Court of Sessions as that will interfere with the discretion of the Magistrate under section 209 (b) and that the provisions of Sec. 209 (b) give adequate protection to an accused since the exercise of power thereunder