The jurisdiction to grant anticipatory bail exists even after a non-bailable warrant is issued, emphasizing judicial discretion in such matters.

1. The petitioner was arrested for offences under S.498A, S.306 and S.34 of IPC. He was released on bail on 24-1-1996. The petitioner is a Police Constable and now attached to Azad Maidan Police Station and is a permanent resident in Mumbai. The deceased, who is the wife of the petitioner suffered burn injuries at her parents' house on 10th November, 1995 at around 00.15 hrs. The father of the deceased is said to have come home at 2.00 a.m. The deceased had been removed to hospital. A statement was recorded of the deceased in the presence of the Executive Magistrate wherein she stated that the husband is not responsible. A statement of the father was also recorded. He also stated that the husband was not responsible. However, the father made another statement on 18th November, 1995 wherein he stated that he had come to know from his daughter that the petitioner and his father were having illicit relations with the sister - in - law of the deceased and, therefore, she was feeling insulted and that is why she has committed suicide. On the basis of this, FIR was registered on 18th November, 1995. However, the petitioner was released on bail on 4-1-1996. Subsequent thereto the father of the deceased has filed a complaint before the Additional Chief Metropolitan Magistrate, 24th Court, Borivli, Mumbai. On the basis of this, the learned Magistrate issued non - bailable warrant. The petitioner came to know about the issue of non - bailable warrant when a newspaper report was published on 10th March, 1998. In view of the above, the petitioner moved an application for anticipatory bail under S.438 of the Cr.P.C. which has been rejected by the Additional Sessions Judge, Gr. Mumbai by his order dated 30th March, 1998.

2. It was submitted before the learned Additional Sessions Judge that the learned Magistrate has taken cognizance of an alleged offence punishable under S.302, IPC. It was submitted that this is a clear abuse of the process of Court. The petitioner has already been released on bail for offences which are based on the same incident. It was submitted that the petitioner cannot be arrested again and again for the same incident. It was also submitted that the application for anticipatory bail is maintainable before the Sessions Court in view of the fact that non - bailable warrants had been issued. In support of his submission, the learned Counsel has relied on a Full Bench decision of the Andhra Pradesh High Court reported at 1986 CriLJ 1303 : AIR 1986 Andh Pra 345, (Smt. Sheik Khasim v. State ). It was, however, submitted by Counsel for the State that in view of the judgment of this Court reported in 1992 CriLJ 2373, ( Ambalal P. Rashamwala v. State of Maharashtra ) the Sessions Court had no jurisdiction to entertain the application under S.438 of the Cr.P.C. In paragraph 6 of the impugned judgment the learned Additional Sessions Judge has held thus:
"The point which needs consideration is whether the apprehension of arrest is at the hand of police or at the instance of Magistrate. The Hon'ble Bombay High Court has clearly ruled that if the arrest is being apprehended in execution of warrant issued by the Magistrate, the provisions of S.438, Cr.P.C. has no application. Therefore, in my considered opinion the application is misconceived and needs to be rejected."
These observations have been made by the learned Special Judge on the basis of the judgment of this Court. It would be apt to reproduce the whole judgment delivered by A. A. Cazi, J : -
"ORDER : - The petitioner seeks (a) an anticipatory bail and (b) order to respondent No. 1 (State of Maharashtra) not to execute the fresh non - bailable warrant which has been issued in Case No.