..(1).. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2878 OF 2008 Mr.Yunus Habibbhai Memon. ..Applicant. Versus Inspector of Police Crime Branch, Mumbai and Anr. ..Respondents. .... Mr.Subhash Jha, Sr.Adv. a/w. Sandhya Y. Memon, Adv.for the Applicant. Mr.V.B.Konde-Deshmukh, APP, for State. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 27th August, 2008. DATED : 27th August, 2008. DATED : 27th August, 2008. P.C.: 1. Heard the learned Sr.Advocate for the Applicant and the learned APP for the State. The applicant is present in person. 2. Leave to amend. Amendment to be carried out forthwith. 3. The applicant is seeking anticipatory bail in C.R.No.3 of 2005 of EOW, Unit-I, Mumbai. The applicant has preferred an application for anticipatory bail before the Sessions Court at ..(2).. Mumbai. The said application came to be rejected by the learned Sessions Judge by order dated 14th August, 2008 by observing as under : "As the charge sheet has already been filed, there remains no question of granting anticipatory bail. Hence, I proceed to pass the following order : ORDER Application is rejected." 4. The learned Sessions Judge has rejected the application only on the above ground and there is no discussion on merits of the case at all. In the case of Bharat Chaudhary & Anr. vs. State of Bihar and Bharat Chaudhary & Anr. vs. State of Bihar and Bharat Chaudhary & Anr. vs. State of Bihar and Anr. Anr. Anr. reported in 2003 Supreme Court Cases (Cri) 1953 2003 Supreme Court Cases (Cri) 1953 2003 Supreme Court Cases (Cri) 1953 the applicants therein were also seeking anticipatory bail. In the said case learned counsel appearing for the respondent State raised a legal objection that since the Court of first instance has taken cognizance of the offence in question, Section 438 of CrPC cannot be used for granting anticipatory bail ..(3).. even by this Court and the only remedy available to the appellants is to approach the trial court and surrender and thereafter apply for regular bail under Section 439 of CrPC. In support of this contention, the learned counsel relied on the judgment in the case of Salauddin Abdulsamad Shaikh v. State of Salauddin Abdulsamad Shaikh v. State of Salauddin Abdulsamad Shaikh v. State of Maharashtra Maharashtra Maharashtra reported in (1996) 1 SCC 667 : 1996 SCC (1996) 1 SCC 667 : 1996 SCC (1996) 1 SCC 667 : 1996 SCC (Cri) 198 (Cri) 198 (Cri) 198. After considering the caseof Salauddin (supra), the Supreme Court observed that : "This judgment in our opinion does not support the extreme argument addressed on behalf of the learned counsel for the respondent State that the courts specified in Section 438 of CrPC are denuded of their power under the said section where either the cognizance is taken by the court concerned or a charge-sheet is filed before the appropriate court. As stated above, this would only amount to defeat the very object for which Section 438 was introduced in CrPC in the year 1973." . The Supreme Court has further observed that : ..(4).. "7.From the perusal of this part of Section 438 CrPC, we find no restriction in regard to exercise of this power in a suitable case either by the Court of Session, High Court or this Court even when cognizance is taken or a charge-sheet is filed. The object of Section 438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The fact, that a court has either taken cognizance of the complaint or the investigating agency has filed a charge-sheet, would not by itself, in our opinion, prevent the courts concerned from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the courts concerned while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of a charge-sheet cannot by itself be construed as a prohibition against the grant of anticipatory bail. In our ..(5).. opinion, the courts i.e. the Court of Session, High Court or this Court has the necessary power vested in them to grant anticipatory bail in non-bailable offences under Section 438 of CrPC even when cognizance is taken or a charge-sheet is filed provided the facts of the case require the court to do so." 5. In view of the decision of the Supreme Court in the case of Bharat Chaudhary (supra), the approach of the learned Sessions Judge is clearly erroneous. Hence, the said order is set-aside. 6. The applicant is given liberty to prefer a fresh application for anticipatory bail before the concerned Sessions Court. On such application being preferred, the learned Sessions Judge shall hear the matter afresh and dispose it of on merits. In order to enable the applicant to prefer necessary application for anticipatory bail before the concerned Sessions Court, I am inclined to protect the applicant till 4th September, 2008. ..(6).. 7. In the event of arrest upto 4th September, 2008 the applicant to be released on bail in the sum of Rs.10,000/- (Rs.Ten Thousand Only) with one or two sureties in the like amount. It is made clear that this order shall remain in operation only till 4th September, 2008. The learned Advocate for the applicant has submitted that in this very case the Magistrate has issued NBW against the applicant. In view of the above order, the NBW issued by the learned Magistrate is set-aside. 8. With the above observations, Criminal Application is disposed of. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)