( 1. ) THIS is a reference of the single Bench of this High Court which raises an important and indeed an interesting question relating to the powers of the High Court and the Court of Session to issue directions for grant of anticipatory bail to persons who have been released on bail during committal proceedings and have not yet been committed in custody to the Court of Session for trial, but who apprehend that they may at the time of committing the case to the Court of Session be remanded to custody by the committing Magistrate.

( 2. ) IN this reference we are not much concerned about the facts as they exist before the trial Court, but it would be appropriate to refer and state the essential part of the relevant facts in brief so as to appreciate the points at issue, properly and effectively.

( 3. ) THE factual aspect of this case which emerges out, giving rise to this reference is that one Keshev Ram Dubey lodged a report in the Police Station, Pawai against the four accused/applicants named above (hereinafter referred to as applicants) to the effect that they had kidnapped his daughter. Consequently, the applicants under apprehension of their arrest moved an application for grant of anticipatory bail for the alleged offence under sections 363, 366 and 376 of the I. P. C. The Chief Judicial Magistrate, Panna (in absence of the Addl. Sessions Judge, Panna) granted the anticipatory bail to the applicants for the aforesaid offences, by his order, dated 25-5-1978. Thereafter, the applicants were charge-sheeted for offences under sections 363 and 366 of the I. P. C. The applicants again, apprehending that they may be commited to the Court of Session under custody, as the offences were triable by Sessions Court, filed another application for anticipatory bail before the Sessions Judge, Panna, but he being on leave the application was again heard and considered by the Chief Judicial Magistrate who by his order, dated 5-1-1979 rejected the same holding that no anticipatory bail can be granted as challan has already been filed and that at the time of committing the case to the Sessions the Magistrate is empowered under Section 209 of the Cr. P. C. to take the accused into custody.

( 4. ) THE applicants being aggrieved by the aforesaid order rejecting their second application for anticipatory bail, moved a petition before this Court under Sections 438, 482 and 483 of the Cr. P. C. 1973 (hereinafter referred to as the Code), placing reliance on a decision of a brother Judge of this Court, U. N. Bhachawat. J. in B. L. Verma v. State of M. P. M. C. C. No. 1063 of 1978, decided on 13-10-1978 Reported in 1979 Jab LJ 419 holding that under Section 438 of the Code, the High Court and the Court of Session are competent to grant anticipatory bail even during pendency of the committal proceedings before the committing Magistrate by directing that in the event of the accused being committed to the Court of Session and is taken into custody, he shall be released on bail. But the learned Judge of the single Bench of this Court (C. P. Sen, J.) noticed another decision of another brother Judge of this Court, S. S. Sharma, J. in Kanhaiyalal Rathi v. State of M. P. Cr. R. No. 130 of 1977 decided on 7-5-1977 : 1978 MPLJ Note 30, wherein the learned Judge is of the view that the provisions of anticipatory bail can be availed of till the challan is filed in the case. In other words, no anticipatory bail can be granted after the challan is filed (vide findings of para 8 ). The learned Judge of the single Bench of this Court hearing the petition of the applicants for grant of anticipatory bail, noticed yet another decision of single Bench of Rajasthan High Court in Rawat Dan v. State of Rajasthan 1975 Cri LJ 691 wherein it has been held that the High Court has no power to direct the committing Magistrate that in the event of committing the case to the Court of Session, if the accused person is not in custody, he shall take bail from him for appeara