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1. The petitioner was arrested for offences under Sections 498A, 306 and 34 of I.P.C. 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 apermament 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 Section 438 of the Cr.P.C. which has been rejected by the Additional Sessions Judge, Gr. Mumbai by his order dated 30th March, 1998.

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. 9/S/81 by the learned Metropolitan Magistrate of Tis Hajari Court, Delhi and to stay execution of that warrant till 18th December, 1991.
2. As far back as 10 years ago in 1981 a criminal case was filed by Respondent No. 2, Bashir Beg, against the present petitioner. It appears that the applicant has attended that Court several times and has even engaged Advocate Dinesh Chawla from Delhi to conduct his defence. The matter in the Delhi Court was fixed on 9th September, 1991 and has pointed out various reasons as to why he could not attend the Delhi Court on that date. As regards his Advocate not attending the Court he has pointed out that the Advocates to Tis Hajari were on strike. Thereafter the petitioner received a letter dated 10th October, 1991 from his surety. Shri Shyam Sunder informing the petitioner that the learned Metropolitan Magistrate had issued a fresh non-bailable warrant against the petitioner because of his absence in the Court and had now fixed the next date as 18th December 1991 for trial. The petitioner also received a letter dated 5-10-1991 from his Advocate informing him that as the Advocates were on strike he had not appeared in the Court of the learned Metropolitan Magistrate and therefore the learned Metropolitan Magistrate had issued a fresh non-bailable warrant against the petitioner and had adjourned the case to 18th December, 1991. The petitioner says that he had already booked a ticket for 14th December, 1991 and he would leave Bombay on 14th December 1991 by Paschim Express by 11 a.m. and that he would go to Delhi and then he would get the non-bailable warrant cancelled and he undertakes to remain present in the Tis Hajari Court of the learned Metropolitan Magistrate, Smt. Sangita Dhingara on 18th December 1991 to face the trial.
5. A Division Bench of the Punjab and Haryana High Court took a contrary (sic) view in Puran Singh v. Ajit Singh. In that case, chargesheet was filed against the accused named in the F.I.R. after exonerating one of them. A private complaint was filed against the excluded person and the Magistrate ultimately issued non-bailable warrant. The Sessions Court rejected an application moved under Section 438, Cr.P.C. on the ground that it was not maintainable. A similar application was filed in the High Court and the Division Bench considered the matter though the trial was almost over, since the question has been referred to by a learned single Judge. A learned single Judge of the Punjab and Haryana High Court had taken a view against the maintainability of such an application in Ramlal v. State of Punjab. The Division Bench held that jurisdiction under Section 438 is not dependent on whether the Magistrate acting under Section 204 has issued bailable or non-bailable warrant, that the arrest may be at the instance of the police or at the instance of the Magistrate who has issued the warrant and in either case it may give rise to an apprehension in the mind of the accused that he : may be arrested and such apprehension, if it arises in relation to a non-bailable offence, entitles ; him to move for anticipatory bail. The Court held that the Court may refuse to give relief if the i warrant is a bailable one since it has the same ¦'effect as an order under Section 438.
Thereafter the Division Bench of the Delhi High Court adverted to the circumstances which led to the incorporation of Section 438 into the body of the Criminal Prodedure Code. Again the Delhi High Court also noticed the judgment of the Supreme Court in the case of Gurbaksh Singh Sibbia. The judgment of the Division Bench of the Punjab and Haryana High Court in Puran Singh's' case (1985 Cri LJ 897) (supra) was approved as follows :
24. A situation very much akin to the situation in hand arose before the Punjab and Haryana High Court in the case of Puran Singh v Ajit Singh reported as 1985 Cri LJ 897. While dealing with the said situation it was observed. . . "The main governing factor for the exercise of jurisdiction under Section 438, Cr.P.C. is the apprehension of arrest by a person accused of the commission of a non-bailable offence. The section makes no distinction whether the arrest is apprehended at the hands of the police or at the instance of the Magistrate. The issuance of a warrant by the Magistrate against a person, to my mind justifiably gives rise to such an apprehension and well entitles a person to make prayer for his anticipatory bail. The High Court or the Court of Session may, however, decline to exercise its powers under Section 438(1), Cr.P.C. keeping in view the fact that the Magistrate has summoned the accused through bailable warrant i.e. a relief almost similar to what can be granted by the Court under Section 438(1), Cr.P.C. yet that does not mean that the Court has no jurisdiction to grant anticipatory bail to such an accused person. The grant of bail under Section 438(1) by the High Court or the Court of Session is, to my mind, dependent on the merits of a particular case and not the order of the Magistrate choosing to summon an accused through bailable or non-bailable warrant.