B. L. Verma v. State of M. P. — 1978 DIGILAW 777 (MP)

ORDER U.N. Bhachawat I. This is an application under section 438 of the Code of Criminal Procedure (hereinafter referred to as 'the new Code') for enlarging the accused-applicants (hereinafter referred to as the applicants) on bail. This application came to be filed before this court in the following manner. 2. The applicants had on 17th August, 1977, obtained anticipatory bail for the offences under sections 147, 148, 323, 294, and 330 read with section 149 of the Indian Penal Code from the Court of the First Additional Sessions Judge. Jabalpur. Thereafter, against these applicants, who were released on bail on being arrested in view of the said order of anticipatory bail, a challan was filed by the police station officer, Belkheda for the aforesaid offences in the Court of the Judicial Magistrate. Patna on 30-1-78. 3. The Judicial Magistrate Patna vide his order dated 10-8-78 sent the case to the chief Judicial Magistrate, Jabalpur. The relevant excerpt of his order is set out below:- "Arguments before' charge heard. The allegations against the accused are such which fall within the ambit of sections 395/376, 511, 451, 397 IPC and other sections of the Indian Penal Code. It is urged that no such case is made out against either of the accused. This argument is worthwhile before the Court in whose jurisdiction the case will go. For me, this is enough that the allegations are covered by those sections which oust the jurisdiction of this Court. The case is. Therefore sent to the Court of C. J. M. Jabalpur as per his distribution memo of criminal work for disposal according to law. The accused shall remain present in the Court of C. J. M. Jabalpur on 24-8-78." 4. The applicants moved an application for anticipatory bail in the Court of the Sessions Judge. Jabalpur for their being released on bail in the event of their being taken into custody for the offences under sections 395/376, 511, 451 and 397 of the Indian Penal Code on committal. The application was made over for decision to the Additional Sessions Judge to the Court of First Additional Sessions Judge, Jabalpur (hereinafter referred to as the Court below) who, vide his order dated 4-9-78 in Misc. Cr. Case No. 646 of 78 dismissed the application on the ground that no such application lay. The application was made over for decision to the Additional Sessions Judge to the Court of First Additional Sessions Judge, Jabalpur (hereinafter referred to as the Court below) who, vide his order dated 4-9-78 in Misc. Cr. Case No. 646 of 78 dismissed the application on the ground that no such application lay. To have a better grasp of the holding of the Court below, the relevant excerpts of the order are set out below:- "At the outset I would like to say that the application is misconceived. Section 438 Cr. P.C. is a judicial check on police excesses and is certainly not applicable to the judicial act of taking an accused in custody. Direction issued to the police under sub-section (1) of section 438 Cr. P.C. for releasing an accused on bail is not binding upon a Magistrate and the general provisions of bail contained in sections 437 and 439 come into operation Section 438 Cr. P.C. is an extra-ordinary and emergent power and does not wipe out the general law of bail. No sooner an accused is directed to be released on bail under sub-section (1) of section 438 Cr, P.C., appear or is brought before the Magistrate the latter is entitled to take him in custody if he decides not to release him on bail. The direction under section 438 is no impediment in the way of the Magistrate to take him in custody. In this connection reference may be made to Kanhaiyalal Rathi v. Slate of M.P. 1977 (II) WN 184=1978 MPLJ SN 30. An accused person can well seek direction of this Court when he has reasonable apprehension that he is likely to be arrested by a police officer in compliance with a warrant of arrest issued against him by a Judicial Magistrate. Thus sub-section (1) of section 438 Cr. P.C. comprehends both the situations namely arrest by a police officer (1) without warrant (2) with warrant. In case of apprehension of arrest without warrant direction is given by this Court to the Police officer to release the accused on bail. And in case of apprehension of arrest with warrant direction is given to the Magistrate to issue bailable warrant of arrest instead of non bailable warrant of arrest Thus in both the cases of safeguard provided is against the arrest by the police and certainly not the judicial act of taking into custody. And in case of apprehension of arrest with warrant direction is given to the Magistrate to issue bailable warrant of arrest instead of non bailable warrant of arrest Thus in both the cases of safeguard provided is against the arrest by the police and certainly not the judicial act of taking into custody. Even when a Magistrate taking cognizance of offence issues bailable warrant of arrest instead of non bailable warrant of arrest in conformity with the direction of this Court he have a power to take the accused in custody when the accused appears or is brought before him since the general law regarding bail is restored. Section 438 Cr. P.C. is an exception to the general law of bail; no sooner its purpose's served the provisions under sections 437 and 439 come into operation. It is not a substitute for sections 437 and 439 Cr. P.C. In this view of the matter this Court has no power to direct a Magistrate that in the event of his taking an accused in custody should take bail from him. It is advantageous to refer Rewat Danand and other v. State of Rajasthan, 1975 Cr. LJ 691. 5. It is obtainable from the above excerpts of the impugned order of the Court below that according to that Court, the bail of an accused person who is released on bail under section 438 of the new Code stands cancelled with the filing of the charge-sheet and that when the Magistrate is seized of the matter, no order for bail under section 438 of the new Code can be passed directing the Magistrate to release an accused on bail in the event of his taking the accused in custody. 6. The learned counsel for the applicants argued that the applicants having been bailed out under the order of the First Additional Sessions Judge, Jabalpur, they are entitled to continue on bail till the conclusion of trial and the bail does not stand cancel1ed with the filing of challan. It can be cancelled only in accordance with the provisions of section 437 (5) of the new Code. It can be cancelled only in accordance with the provisions of section 437 (5) of the new Code. He also argued that as the Judicial Magistrate, Patna, after the challan was filed by the police for offences under sections 147, 148, 323, 294 and 330 of the Indian Penal Code read with section 149 of the India Penal Code before him, has sent the case to the Chief Judicial Magistrate on the ground that to him it appeared to be a case for commitment to the Court of Session for the trial of offences under section 395, 397 and 397, 511, the applicants have a reasonable apprehension that they may be committed and taken into custody and as such that application before the Court below under section 438 of the new Code was maintainable. He also argued that the High Court or the Court of Session under such circumstances has jurisdiction to issue direction to the committing M1.gistrate that in the event the applicants are committed to the Court of Session and taken in custody, they be released on bail. His argument was that the powers of the Magistrate to remand an accused to custody under section 209 of the new Code are subject to the provisions of this Code relating to bail. 7. The learned Government Advocate for the State conceded to the, legal position that a bail granted under section 438 of the new Code shall be valid till the conclusion of the trial in respect of only those offences for which it was granted and not for other offences. He also conceded that during the pendency of committal proceedings also an application for anticipatory bail by an accused lay on the apprehension that he my be committed and taken in custody and submitted that he has no objection if the case is remitted to the Court below with a direction that it should consider the application of the applicants for anticipatory bail on merits and decide. 8. Ordinarily in view of the concession of the learned counsel for the State, the matter could have been disposed of on that basis, but in view of the fact that the arguments were already heard at length and the questions involved are of general importance and frequent occurrence, I propose to write a reasoned order. 9. 8. Ordinarily in view of the concession of the learned counsel for the State, the matter could have been disposed of on that basis, but in view of the fact that the arguments were already heard at length and the questions involved are of general importance and frequent occurrence, I propose to write a reasoned order. 9. It may be mentioned that I am not concerned with the merits of the bail application in the light of the arguments advanced by the learned counsel for the applicants. There are only following two questions for decision before me:- (i) Whether the bail under section 438 of the new Code is valid until the charge sheet is filed or till the conclusion of trial; (ii) Whether the Court of Session or the High Court has no power: to entertain an application under section 438 of the Code and to direct the committing Magistrate that in the event of his committing the case to the Court of Session, an accused who is not in custody in the event of his being taken in custody for appearance before the Court of Session should be released on bail, 10. I shall deal with the aforesaid questions ad seriatim in the back drop of the facts of the instant case. 11. Question No.1 – It is an admitted position tint the applicants were ordered to be released on bail under section 438 of the new Code for offences under sections 147, 148, 323, 294 and 330 read with section 149 of the Indian Penal Code and have been bailed out only in respect of these offences. 12. Section 438 of the new Code appears in Chapter XXXIII of the new Code which is instituted "Provisions as to bail bonds." Section 436 in this Chapter deals with the bailable offences and S. 437 deals with the grant of bail in respect of non bailable offences. This section is the main provision in respect of non bailable offences. The other two sections i.e. 438 and 439 follow in succession to that section. 13. This section is the main provision in respect of non bailable offences. The other two sections i.e. 438 and 439 follow in succession to that section. 13. Section 437, as is clear from the expression "when any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail" talks of release after the person is actually in custody. 14. Section 438 which also relates to non bailable offences talks of an order of bail when a person is not actually in custody, but as the expression "when any person has reason to believe that he may be arrested" "and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail", the release on bail is after arrest. The only difference between the two is that in the former that is section 437, the order is passed after a person is actually arrested, where as in the latter, that is section 438, the order is passed prior to arrest, but becomes operative after arrest. 15. It would be useful at this stage to advert to the decision of their Lordships of the Supreme Court in Balachand Jain v. State of M.P. 1977 JLJ 39. Their Lordships of the Supreme Court have observed as under with regard to the nature of the bail under section 438:- As per Bhagwati. J. (for himself and Gupta. J.) "We do not find in this section the words anticipatory bail", but that is clearly the subject with which the section deals. In fact the anticipatory bail is a misnomer. It is not as if bail is presently granted by the Court in anticipation of arrest. When the Court grants anticipatory bail, what it does is to make an order that in the event of arrest, a person shall be released on bail. Manifestly, there is no question of release on bail unless a person is arrested and therefore, it is only on arrest that the order granting 'anticipatory bail becomes operative." As per Fazal Ali, J "To begin with section 438 of the Code applies only to non-bailable offences. Manifestly, there is no question of release on bail unless a person is arrested and therefore, it is only on arrest that the order granting 'anticipatory bail becomes operative." As per Fazal Ali, J "To begin with section 438 of the Code applies only to non-bailable offences. Secondly the only auth0f1ties which are empowered under this section to grant bail are the Court of Session or High Court. In view of the fact that an order for anticipatory bail is an extra-ordinary remedy available in special cases this power has been conferred on the higher echelone of judicial service namely the Court of Session or the High Court. Another important consideration which flows from the interpretation of section 438 of the Code is that this section does not contain any guidelines for passing an order of anticipatory bail. We might however, mention here that the term 'anticipatory bail' is really a misnomer because what the section contemplates is not anticipatory bail but merely an order releasing an accused on bail in the event of his arrest. It is manifest that there can be no question of bail, unless a person is under detention or custody. In these circumstances therefore there can be no question of a person, being released on bail if he has not been arrested or placed in police custody. Session 438 of the Code expressly prescribes that any order passed under that section would be effective only after the accused has been arrested. The object which is sought to be achieved by section 438 of the Code is that the moment a person is arrested, if he has already obtained an order from the Session Judge or the High Court, he would be released immediately without having to undergo the rigours of Jail even for a few days which would necessarily be taken up if he has to apply for bail after arrest." 16. The guidelines for grant of bail are provided in sub-section (1) of section 437. There are no guidelines provided under section 438, but as observed by their Lordships of the Supreme Court in Balachand Jain v. The State of M.P. 1977 JLJ 39, the conditions of section 437 (1) are implicitly contained in it. The guidelines for grant of bail are provided in sub-section (1) of section 437. There are no guidelines provided under section 438, but as observed by their Lordships of the Supreme Court in Balachand Jain v. The State of M.P. 1977 JLJ 39, the conditions of section 437 (1) are implicitly contained in it. The relevant observation is set out below: "We have already stated that section 438 of the Code does not contain the conditions on which the order for anticipatory bail could be passed. As section 438 immediately follows section 437 which is the main provision for bail in respect of non bailable offences it is manifest that the conditions imposed by section 437 (1) are implicitly contained in section 438 of the Code. Otherwise the result would be that a person who is accused of murder can get away under section 438 by obtaining an order for anticipatory bail without the necessity of proving that there were reasonable grounds for believing that he was not guilty of offence punishable with death or imprisonment for life. Such a course would render the provisions of section 437 nugatory and will give a free licence to the accused persons charged with non-bailable offences to get easy bail by approaching the Court under section 438 and by passing section 437 of the Code. This we feel could never have been the intention of the legislature. Section 438 does not contain unguided or uncanalised powers to pass an order for anticipatory bail but such an order being of an exceptional type can only be passed if apart from the conditions mentioned in section 437, there is a special case made out for passing the order. The words "for a direction under this section" and "Court, mw if it thinks fit, direct" clearly show that the Court has to be guided by a large number of considerations including those mentioned in section 437 of the Code." 17. Thus from the foregoing discussion it is evident that under both the sections, the release on bail is after actual arrest. The provisions contained in section 437 tacitly apply to a bail under section 438 with the exception that in case of section 438 under exceptional circumstances the order of bail is made in advance to become operative after arrest. 18. The provisions contained in section 437 tacitly apply to a bail under section 438 with the exception that in case of section 438 under exceptional circumstances the order of bail is made in advance to become operative after arrest. 18. In this view of the matter, it can safely be said that the moment a person is released on bail after arrest in compliance with the directions contained in the order passed u/s 438, it would be deemed as if it was a bail granted under sub section (1) of section 437, and therefore it shall be in operation until cancelled by the Court in accordance with the provisions contained in sub-section (5) of section 437. This conclusion gets buttressed from the provision contained in sub-section (2) of section 439 of the Code which reads as under:- "439. Special powers of High Court or Court of session regarding bail. ** ** ** ** (2) A High Court or Court of Session may direct that any person who has been released on bail under this chapter be arrested and commit him to custody." (Emphasis supplied by me) This view, that once when it is held that the person released on bail under section 438 would be deemed to have been released on bail under subsection (1) of section 437, his bail cannot be cancelled except an specific order under sub-section (5) of section 437, gets support from the decision of their Lordships of the Supreme Court in Bashir and others v. State of Haryana, AIR 1978 SC 85. 19. The upshot of the foregoing discussion is that the bail of a person bailed out under an order under section 438 would not stand cancelled or cannot be cancelled by a Magistrate merely on the ground that a charge sheet has been filed, It shall remain valid until the conclusion of the trial unless it is cancelled by an appropriate Court under section 437 (5) or 439 (2). 20. 20. The decision of this Court in K. L. Rathi and another v. The State of M.P. 1977 (II) WN 184=1978 MPLJ SN 30, does not lay down that the bail granted under section 438 of the new Code shall be valid only until the filing of the charge sheet by the prosecution and thereafter without a specific order for the cancellation of the bail under chapter XXXIII of the new Code, the Magistrate can only, on the ground that the charge sheet was filed, cancel the bail and commit the accused to custody. 21. In that case, the question had arisen out of an application by the prosecution for the cancellation of bail that was granted under section 438 of the new Code by the Additional sessions Judge. The application for cancellation of the bail was filed after the filing of the challan in the Court of the Additional sessions Judge. It was held by this Court in that case relying on the provisions of sub-section (2) of section 439 of the Code that the bail in exercise of powers contained in that section could be cancelled. The relevant observations are set out below:- "Even otherwise under Section 439 (2) of the Code the Court of session had the power to direct that any person who has been released on bail under Chapter XXXIII be arrested and commit him to custody." ** ** ** ** "The language of section 497 (5) of the old Code is similar to the language of section 439 (2) of the present Code in so far as the question in issue is concerned. The interference in the instant case was fully justified." In short the Court below was not right in taking a view on the basis of that Judgment that the bail granted under section 438 is valied only until the challan is filed. 22. The interference in the instant case was fully justified." In short the Court below was not right in taking a view on the basis of that Judgment that the bail granted under section 438 is valied only until the challan is filed. 22. Before parting with this question, I would hasten to observe that in the instant case, the applicants who are bailed out for offences under sections 147, 148, 323, 294 and 330 read with section 149 of the Code cannot under that order of bail claim to be continued on bail in the event it appears to the Magistrate that they are liable to be tried for offences under sections 395, 376/511, 451 and 397 on the consideration of the challan papers and are committed to the Court of session. The reason is obvious that the order of bail dated 17-8-78 was for specified offences and accordingly the bail is also for these specific offences. This view gets support from Form No.45 prescribed under section 476 of the new Code in respect of bail u/s 438 also. It is a different matter that while considering a distinct application for the apprehended arrest in respect of the other offence/offences on the basis of the same material, the fact that that Court had on that very material ordered anticipatory bail may weigh with that Court. The learned counsel for the applicants was not able to show any law, in his long drawn argument, on the question that the bail of the applicants for offences under sections 147, 148, 324, 293 and 330 read with section 149 of the Indian Penal Code would be valid for offences under sections 395, 376/511 and 397 also. 23. I now turn to second question. For the intelligent understanding it is advisable to set out below the provisions contained in sub-sections (1) and (3) of section 438 of the new Code: "438 ** ** ** ** (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence. he may apply to the High Court or the Court of Session for a direction under this section and that Court may, if it thinks fit, direct that in the event of such arrest, be shall be released on bail. he may apply to the High Court or the Court of Session for a direction under this section and that Court may, if it thinks fit, direct that in the event of such arrest, be shall be released on bail. ** ** ** ** (3) If such person is thereafter arrested without warrant by an officer-in-charge of a police station on such accusation, and is prepared either at the time of arrest or at any time white in the custody of such officer to give bail, he shall be released on bail and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1)." On the plain construction of the forequoted two sub-sections, it is clear that sub-section (1) of section 438 deals with the substantive statutory powers of the High Court and the Sessions Court to give a direction on an application of a person apprehending his arrest for non-bailable offence that in the event of such arrest he shall be released on bail. Sub-section (2) of this section relates to the conditions which the Court may, while passing an order under sub-section (1), impose bearing in mind the features of that case. Sub-section (3) illustrates the manner for working out an order passed under sub-section (1) of section 438. 24. It is also obtainable on a clear reading of sub-section (1) of section 438 that it includes in its ken all non-bailable offences irrespective of the fact whether they are cognizable or non cognizable. 25. In the light of the foregoing discussion about the construction of section 438. it cannot be said that it does not include within its ken a situation where a person makes an application apprehending his being taken into custody on a committal order of his commitment by a Magistrate for trial to a Court of Session. In other words there is nothing to indicate in section 438 (1) to exclude a direction even to the Magistrate to release a person on bail in the event of his making an order for taking of the accused in custody on an order of committal having been made against the accused. In other words there is nothing to indicate in section 438 (1) to exclude a direction even to the Magistrate to release a person on bail in the event of his making an order for taking of the accused in custody on an order of committal having been made against the accused. Had it been the intention of the legislature that sub-section (1) of section 438 was to include within its ken only apprehended arrest by the police officer without warrant, there was no occassion to illustrate the second manner in sub-section (1) of section 438 Sub-section (3) of section 438 specifically provides as to how a Magistrate shall act in respect of non-bailable cases of which it has taken cognizance when then: is an order of the anticipatory bail in favour of an accused person under sub-section (1) of section 438. 26. The object of introduction of the new provision of anticipatory bail is given by the Law Commission while recommending this provision in its 41st report wherein it observed as below:- "The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond or otherwise misuse his liberty while on bail there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail. We recommend the acceptance of this suggestion. We are further of the view that this special power should be conferred only in the High Court and the Court of Session and that the order should take effect at the time of arrest or thereafter" In its 48th Report, the then Commission observed thus:- "The Bill introduces a provision for the grant of anticipatory bail. This is substantially In accordance with the recommendation made by the previous Commission (41st Report) we agree that this would be a useful addition. 27. This is substantially In accordance with the recommendation made by the previous Commission (41st Report) we agree that this would be a useful addition. 27. The forequoted object behind the addition of this provision also reinforces the conclusion that the High Court or the Court of Session has power under section 438 (1) to direct the committing Magistrate that in the event of committing a case to the Court of Session, if the accused person is not in custody, he shall take bail from him for appearance before the Court of Session. It would be useful at this stage to quote the relevant portion of section 209:- 209. Commitment of case to Court of Session when offence is triable exclusively by it:- "When a case instituted on a police report or otherwise the accused appears or is brought before the Magistrate and it appears to the Magistrate that the-offence is triable exclusively by the Court of Session, he shall- (a) ** ** ** ** (b) Subject to the provisions of this Code-Relating to bail, remand the accused to custody during and until the conclusion of the trial;" (Emphasis supplied by me) The expression underlined by me in the forequoted section is of great significance when remanding of the accused to custody, in the event of his being committed, is made subject to the provisions of this Code relating to bail by no stretching, it excludes section 438 (1), obviously it is a section very much in the Code. 28. The High Court of Rajasthan in Rewat Dan v. State of Rajasthan 1975 Cr. LJ 691, has taken a view that powers under section 438 (1) of the Code cannot be exercised so as to direct the committing Magistrate that in the event of committing the case to the Court of Session, if the accused is not in custody, he shall take bail from him for appearance before the Court of Session. 29. LJ 691, has taken a view that powers under section 438 (1) of the Code cannot be exercised so as to direct the committing Magistrate that in the event of committing the case to the Court of Session, if the accused is not in custody, he shall take bail from him for appearance before the Court of Session. 29. This view of the Rajasthan High Court is based on the reasoning that under clause (b) of section 209 of the new Code, the committing Magistrate has been given the power in his discretion to release the accused on bail for any of the offences for which he is being committed and as such if a direction under sub-section (1) of section 438 is issued, it will tantamount to taking away the discretion of power given to the committing Magistrate. With due respect to the learned Judge, I am unable to persuade myself to agree with that view. The relevant observations from the decision of the Rajasthan High Court are set out hereinbelow:- "This section no doubt authorises the High Court and the Court of Session to grant bail in anticipation of arrest upon an application made by a person who has reason to believe that he may be arrested on an accusation of having committed a non bailable offence but this Court has no power to direct the Committing Magistrate that in the event of committing the case to the Court of Session, if the accused person is not in custody he shall take bail from him for appearance before the Court of Session. It cannot be lightly assumed that the provision of sub-section (1) of section 438 of the new Code empowers that High Court or the Court of Session to interfere with the discretion given to the committing Magistrate under clause (b) of section 209 of the new Code. Under the aforesaid clause committing Magistrate has the power to remand the accused to custody during and until the conclusion of the trial subject to certain restrictions contained in the provisions of the Code of Criminal Procedure relating to bail. Under the aforesaid clause committing Magistrate has the power to remand the accused to custody during and until the conclusion of the trial subject to certain restrictions contained in the provisions of the Code of Criminal Procedure relating to bail. If the committing Magistrate is directed by the High Court or the Court of Session under section 438 of the Code of Criminal Procedure to take bail from an accused who is not in custody in the event of the case against him being committed to the Court of Session, such a direction will tantamount to taking away the discretion or power given to him under clause (b) of section 209 of the Code of Criminal Procedure Consequently I do not feel inclined to hold that section 438 (1) can be construed in such a manner so as to give power to the High Court or the Court of Session in the event of committing the case to the Court of Session to issue a direction to the committing Magistrate that if the accused if not in custody he shall take bail from him for appearance before the Court of Session. I may, however, observe that section 209 of the new Code is a new provision. One of the main features thereof is that the committing Magistrate also has been given the power to admit a person to bail even though such person may be in a custody at the time of commitment of the case to the Court of Session. The reason for giving such powers is that in the absence of such a power the accused person would have to apply to the Court of Session for grant of bail. The legislature in its discretion therefore thought it necessary to gin this power to the committing Magistrate by enacting clause (b) of section 209, Cr, P.C. so that the accused person may not be subjected to harassment and may not be compelled to go to the Court of Session for obtaining bail. Another feature of this section 209. Cr. P.C. is that it empowers the Magistrate to remand an accused person who is on bail to custody at the time of committing him to the Court of Session for an offence which is triable exclusively by it. But this power is controlled by the provisions of this Code rotating to bail. Another feature of this section 209. Cr. P.C. is that it empowers the Magistrate to remand an accused person who is on bail to custody at the time of committing him to the Court of Session for an offence which is triable exclusively by it. But this power is controlled by the provisions of this Code rotating to bail. The committing Magistrate, therefore, is not empowered to cancel the bail of an accused person and to remand him to custody at the time of committing the case to the Court of Session if he has been bailed out by an order of' the High Court or of the Court of Session unless the order passed by the High Court or the Court of Session is of a temporary nature and permits the Magistrate to reconsider the matter at some subsequent stage in the proceedings. There is no scope for the argument that as soon as the learned Magistrate decides to commit the accused he is bound to remand the accused to custody even though the accused is admitted to bail by the order of the High Court or of the Court of Session for trial for an offence exclusively triable by it." 30. It can very well be seen from the forequoted observations of the decision of the High Court of Rajasthan that according to the learned Judge when an order is passed, before a matter comes to the committing Magistrate for the release of an accused person on an anticipatory ball in respect of offences which are exclusively triable by the Court of Session and thereafter a challan is filed before the committing Magistrate and the committing Magistrate decides to commit the accused, in that event because of the order, be shall not remand the accused to custody by canceling his bail at the time of committing the case to the Court of Session unless the order itself as of a temporary nature and authorised the Magistrate to reconsider the continuance of the accused on bail at a subsequent stage in the proceedings before him, The reason assigned for this view by the Learned Judge is that the powers exercisable under clause (b) of section 209 by the committing Magistrate are subject to the provisions of this Code regarding the bail. But the learned Judge is of the view that in case there is no such order of bail before the committing Magistrate is seized of the matter, the High Court or the Court of Session has no power to pass an order of anticipatory bail under sub-section (1) of section 438 to release the accused on bail in the event of his being committed to the Court of Session as it would amount to denuding the committing Magistrate of its power and discretion under clause (b) of section 209. 31 From the foregoing analysis of the reasonings of the Rajasthan High Court, it is evident that the learned Judge has construed clause (b) of section 209 in a manner that in a particular set of circumstances, it would not be subject to the provisions of section 438, in my opinion, such a construction of section 209 (b) is not warranted on its plain reading. The expression used is "subject to the provisions of this Code relating to bail" admits of no ambiguity, and section 438 of the new Code is very much a provision in the new Code. If the interpretation put by the learned Judge of the Rajasthan High Court is adopted, it would mean reading something which is not in clause (b) of section 209. It would tantamount to adding a proviso to the powers of the High Court and the Court of Session regarding the grant of anticipatory bail contained in sub-section (1) of section 438 that the power under sub-section shall not be exercised when a matter is pending before a committing Magistrate. In my humble opinion such an interpretation is unwarranted by canons relating to interpretation of statutes. 32. There are sections 437 and 439 in the new Code. The portion relevant for the present discussion, of section 439 is set out below:- 439. Special powers of High Court or Court of Session regarding bail-(1) High Court or Court of Session may direct:- (a) That any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned that sub-section. On reading the foregoing portion of section 439 of the new Code, it is clear that a high Court or a Court of Session as the power to grant bail in respect of those very offences for which a Court subordinate to it has. This jurisdiction is not merely revisional but concurrent with that of the subordinate court, seized of the matter. It cannot be said as a matter of law that when the matter is panding before the subordinate Court, High Court or Session would not be competent to entertain and dispose of the application as it would amount to denuding the subordinate Court of its power or discretion under section 437. It is a different matter that although theigh Court or the Court of Session has concurrent jurisdiction, it is desirable that ordinary practice should be that the lower Court should be first moved in the matter. In the very chapter in which sections 437 and 439 appear, section 438 is there. It also deals with the powers of High Court and Sessions court regarding grant of bail, with the only difference that it gives special powers to order the same in anticipation of arrest. Thus, for the parity of reason s given just herein above regarding the concurrent powers under section 439, it cannot be said that the power under section 439 (1) of the new Code cannot be exercised when the committing Magistrate is seized of the matter, merely on the ground that it would denude the committing Magistrate of his power regarding bail under section 209 (b) of the new Code. 33. To quote from "Principles of Statutory Interpretation" by Honorable the Chief Justice G.P. Singh, M.P. High Court page 81, the well recognised principle is "It is the duty of the Courts to avoid" a head on clash "between two sections of the same Act and "whenever it is possible to do so, construe provisions which appear to conflict so that they harmonise." It should not be lightly assumed that Parliament had given with one hand what it took away with other". The provision of one section of a statute cannot be used to defeat those of another "unless it is impossible to effect reconciliation between them". The provision of one section of a statute cannot be used to defeat those of another "unless it is impossible to effect reconciliation between them". In this view of the matter, it cannot be said that the power given to High Court and Court of Session cannot be exercised by virtue of section 209 (b) while the matter is pending before the committing Magistrate after the filing of charge sheet. 34. In the light of the foregoing discussion, I am of the view that the High Court or the Court of Session is competent to grant anticipatory bail in exercise of its power under sub-section (1) of section 438 even during the pendency of the committal proceedings before the committing Magistrate directing that in the event of the accused being committed to the Court of Session and is taken into custody, he shall be released on bail. 35. In the result, I hold that the Court below ought to have considered the application on merits. I, therefore, vibe this order, direct the Court below to consider the application for anticipatory bail of the applicants that was filed before it in Misc. Cr. Case No.646 of 1978 on 28-8-78 on merits and dispose it of according to law.