A learned Single Judge of this Court in Cr.

Misc. No. 19124 of 2014 had framed three issues necessitating the constitution of the Full Bench.

The questions framed are:- (i) whether an application for anticipatory bail under Section 438 of the Code of Criminal Procedure would be maintainable in complaint cases where after the enquiry, the court simply issues summons; (ii) Whether Additional Sessions Judges of any Sessions Division acting as a Special Court exercising powers of a Magistrate only could be treated as Court of Sessions for the purposes of Section 438 of the Code of criminal procedure? and (iii) Whether an application under Section 438 of the Code would be maintainable for the second time before the Court of Sessions or before the High Court.

On an earlier occasion, with a different Patna High Court CR. MISC. No.19124 of 2014(18) dt.19-04-2023 31/39 composition of the Full Bench, the matter was deferred for the reason of pendency of Sushila Aggarwal and others Vs. State (NCT of Delhi) and Another , (2020)5 SCC 1 before the Constitution bench.

The issue in Sushila Aggarwal 's case (supra) was whether the life of an anticipatory bail would end at the time and stage when an accused is summoned by a court.

The issues raised by the learned Single Judge are different from what was decided by the Constitution Bench in Sushila Aggarwal (supra).

It may be necessary for us to indicate that in Sushila Aggarwal (supra), the question was whether the protection granted to a person under Section 438 ought to be limited for a fixed period so as to enable the person to surrender before the trial court and seek regular bail and whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the Court.

In Gurbaksh Singh Sibbia Vs. State of Punjab in the year 1977, the Full Bench of Punjab and Haryana Patna High Court CR. MISC. No.19124 of 2014(18) dt.19-04-2023 32/39 High Court had explained the circumstances and the contours within which an order under Section 438 could be passed. In the aforenoted Full Bench judgment, it was held that the power under 438 is of an extraordinary character and therefore it has to be exercised only in exceptional cases. Neither Section 438 nor any other provision of the Code would authorize granting of blanket anticipatory bail for offences not yet committed or with regard to accusations not so far levelled. The limitations under Section 437 of the Code of Criminal Procedure are required to be read while disposing of an application under 438 Cr.P.C ., as such limitations provided under Section 437 Cr.P.C. is implicit under Section 438 as well. In addition to all this, the Full Bench went on to observe that over and above the limitations mentioned under Section 437 Cr.P.C., a petitioner seeking anticipatory bail is required to make out a special case for the exercise of the power to grant anticipatory bail. For larger interest of public and State, it was necessary that in serious cases like economic offences involving blatant corruption at the higher rungs of the Patna High Court CR. MISC. No.19124 of 2014(18) dt.19-04-2023 33/39 executive and political power, the discretion under Section 438 Cr.P.C. should not be exercised and that general allegations of malafides in the petitions would be inadequate and the court must be satisfied on materials before it that the allegations of malafides are substantial and the accusations are false and groundless.

The Constitution Bench of the Supreme Court in the same case ( Gurbaksh Singh Sibbia Vs. State of Punjab , (1980) 2 SCC 565) differed with the propositions given by the Full Bench of Punjab and Haryana High Court specially with respect to the powers being of extraordinary character and the requirement of the petitioner of making out a special case for grant of anticipatory bail. The Constitution Bench also did not approve of the observations made by the Panjab and Haryana Full Bench that the conditions/prescriptions under Section 437 of the Code of Criminal Procedure would have to be read into the provisions of 438 Cr.P.C . also. The Constitution Bench judgment in Sibbia (supra) held the field for about one and half decades when a different view was sounded by the Patna High Court CR. MISC. No.19124 of 2014(18) dt.19-04-2023 34/39 Supreme Court, by a three Judges Bench in Siddharam Satlingappa Mhetre Vs. State of Maharashtra (2011) 1 SCC 694. In Sibbia (supra), it was clarified that there would be no necessity of always keeping the anticipatory bail for a fixed duration which would depend upon circumstances and requirement of each case. In Mhetre (supra), however, the Supreme Court took the view that the order of anticipatory bail once granted ordinarily would subsist during the entire duration of the trial and in no case can a duration be prescribed. A totally different strand of reasoning was given by the Supreme Court in other cases namely Salauddin Abdulsamad Shaikh Vs. State of Maharashtra , (1996) 1 SCC 667. For the first time, the Supreme Court gave a discordant note and stated that the grant of anticipatory bail is not for bypassing the regular court. The view that the outer date for the continuance of such bail be given in the order was approved with the condition that upon the expiry of such period, the petitioner should move the regular court for bail. Similar was the judgments of the Supreme Court in K.L. Verma Vs. State, Patna High Court CR. MISC. No.19124 of 2014(18) dt.19-04-2023 35/39 (1998) 9 SCC 348; Sunita Devi Vs. State of Bihar , (2005) 1 SCC 608; Adri Dharan Das Vs. State of West Bengal , (2005) 4 SCC 303; HDFC Bank Ltd. Vs. J.J. Mannan , (2010) 1 SCC 679. With these set of decisions at two different spectrums, a necessity was felt for revisiting the issues by a Constitution Bench in Sushila Aggarwal & Others (supra). In Sushila referred to above (2020) 5 SCC 1, it has conclusively been held that the protection granted under Section 438 Cr.P.C. should not always or ordinarily be limited to a fixed period but, such conditions of outer limit could be imposed under special circumstances and peculiar features of any case which in turn would depend upon the seriousness or gravity of offence. The conditions could be imposed by the court but, such conditions ought to be appropriate. To that extent, the judgment in Mhetre (supra) was not found to be in-consonance with the law laid down in Sibbia (supra). The judgment in Salauddin Abdulsamad Shaikh and other cases were held to be bad law. One of the Hon'ble Judges voicing the opinion aptly said that it is always useful to remind oneself that the rights Patna High Court CR. MISC. No.19124 of 2014(18) dt.19-04-2023 36/39 which citizens cherish deeply are fundamental it is not the restriction that is fundamental. He went on to quote Joseph story, a great jurist and a U.S. Supreme Court Judge, who had remarked that "personal security and private property rests entirely upon the wisdom, the stability and the integrity of the courts of justice".

The issue with respect to duration thus is no longer res-integra.

The issues raised by the learned Single Judge however, are substantially different which can be seen from the terms of reference. The first question posed is whether an anticipatory bail petition is maintainable in complaint cases where cognizance has been taken. The Single Judge was of the view that after the inquiry in a complaint case, if cognizance is taken, a Magistrate, in the first instance, issues summons or for necessary reasons, warrant, in warrant cases. It is not a usual practice to issue warrant in summons cases or in non-bailable cases in the first instance. In that case, there does not remain any apprehension in the Patna High Court CR. MISC. No.19124 of 2014(18) dt.19-04-2023 37/39 mind of an accused to entitle him to press his petition for anticipatory bail before a superior court i.e. a Court of Sessions or the High Court. While raising this doubt, the learned Single Judge, with profit, referred to the provisions contained in Section 204 and Sections 84 to 87 of the Cr.P.C. dealing with provisions of issuance of process and summons and warrant. A reference was also made to the provisions contained in Section 205 where a Magistrate could dispense with the personal attendance of an accused. On a holistic reading of the aforenoted provisions, the learned Single Judge expressed doubt whether an anticipatory bail application would be maintainable in a complaint case where only summons have been issued after cognizance.

The second and third questions referred for consideration are somewhat different. Whether a court of Additional Sessions Judge exercising powers as a Special Court which is to be exercised by Magistrate could be treated as Court of Sessions for entertaining anticipatory bail applications as anticipatory bail application can be Patna High Court CR. MISC. No.19124 of 2014(18) dt.19-04-2023 38/39 granted only by the Sessions Court or the High Court, which power is concurrent and whether second anticipatory bail is maintainable before the High Court or before the Court of Sessions. The reasons for raising this proposition are that the scheme of the Code clearly provides the power under Section 438 to High Court and Court of Sessions both of which courts have appellate powers.

The learned Single Judge was of the view that if an Additional Sessions Judge, who acts as a Magistrate in Special Cases having original jurisdiction, does not have the jurisdiction to pass orders under Section 438 of the Code of Criminal Procedure as such power under the scheme is given to such court, which has the appellate authority. In such cases, viz. instances arising out of Special cases under special laws, the appellate Court would be the High Court and therefore the anticipatory bail in such cases could be entertained only by the High Court and not by the Special Court of Additional Sessions Judge.

The issues thus require consideration.

Patna High Court CR. MISC. No.19124 of 2014(18) dt.19-04-2023 39/39 We propose to and request Sri Anshul, Sri Rajesh Shukla and Ms. Surya Nilamber Advocates to be the Amicus.

Let copies of the referral order be served upon them for the needful.

Re-notify the cases on 26.04.2023 at 2.15 P.M. (Ashutosh Kumar, J) (Harish Kumar, J) (Chandra Shekhar Jha, J) uday/rishi-