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2. The police registered a case against two accused on the information furnished by the complainant. After investigation, charge-sheet has been filed agains the two accused. Thereafter, the first informant filed a private complaint before the Court concerned alleging that he had laid information with the police against seven persons, but information was recorded only against two persons and this was done so to help the other persons to escape the process of law. The complaint was, therefore, directed against the remaining five persons. The learned Magistrate recorded the sworn statement of the complainant and the statements of other witnesses produced, took cognizance and directed issue of non-bailable warrant against the five accused under Section 204 of the Code of Criminal Procedure, 1973 (for short 'the Code'). Thereafter, two among the five accused have filed the present application under Section 438, Criminal Procedure Code.

5. A Division Bench of the Punjab and Haryana High Court took a contrary view in Puran Singh v. Ajit Singh, 1985 Cri.L.J. 897. In that case, charge-sheet 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, Criminal Procedure Code 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 had been referred 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, 1976 Cand. LR (Cri.) 388. 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 warrant is a bailable one since it has the same effect as an order under Section 438.

12-13. It has been strenuously argued that the second part of sub-section (3) of Section 438 would warrant a restricted interpretation being given to sub-section (1). The second part states that if a Magistrate takes cognizance of an offence, and decides to issue warrant, he shall issue a bailable warrant in conformity with the order of anticipatory bail. This provision is unambiguous indicating how in the face of an order passed under sub-section (1) a Magistrate should exercise his jurisdiction under Section 204. He is precluded from issuing a non-bailable warrant since that may cause embarrassment to police officer entrusted with the duty of executing the warrant. Even without this provision, a Magistrate can be expected only to issue a non-bailable warrant even after coming to know of an order of anticipatory bail passed by the High Court or Sessions Court. Of course, he may not be aware of the fact that an order of anticipatory bail has been passed. Such cases will have to be treated at par with the instances of non-bailable warrants issued prior to passing of an order under Section 438(1). In such cases, a pragmatic view should be taken and conflict avoided. A reading of paragraph 39 of the decision in Gurbaksh Singh's case would be instructive. The Supreme Court referred to orders passed in appeal against orders of the High Court granting anticipatory bail imposing conditions. The Supreme Court in those cases directed the person concerned to surrender to the police for a brief period if a discovery is to be made under Section 27 of the Evidence Act or that he should be deemed to have surrendered himself if such a discovery is to be made. In exceptional cases, the Court directed that the order of anticipatory bail will remain in operation only for a few days until the filing of the F.I.R. in respect of matters covered by the order. After referring to these orders, the Court observed -"these orders, on the whole, have worked satisfactorily, causing the least inconvenience to the individuals concerned and least interference with the investigational rights of the police".

14. In our opinion, the conflict between an order of anticipatory bail and non-bailable warrant has to be met in a pragmatic manner striking a balance between individual's right to personal freedom and the invocation of right of the police and the procedure required to be followed by a Magistrate. Where an order of anticipatory bail is passed after issue of non-bailable warrant of arrest by a Magistrate, the duty of the police officer entrusted with execution of the warrant would be to arrest the person and produce him before the Magistrate who thereupon shall deal with the accused as required by the order of anticipatory bail.