Order.- This application is filed under section 438, Criminal Procedure Code, ‘for the grant of anticipatory bail to the petitioner. The petitioner was accused in Crime, No. 2 of 1982 of Uala Police Station, Adilabad District for the offence punishable under section 120-B, Indian Penal Code. 2. It is alleged in the charge-sheet, that on 24th January, 1982, Exhibits A-1 to A-5, conspired to murder the deceased and that Exhibit A-5 would leave on 26th January, 1982 and A-1 to A-4 should murder the deceased next day and accordingly A-5 left the village on 26th January, 1982, A-5 is the petitioner herein. The petitioner, therefore, contends that he was implicated falsely on account of political rivalry due to Gram Panchayat Elections by the opposite party. The petitioner, therefore, apprehends that he would be arrested in Crime No. 2 of 1982. He should, therefore, be granted anticipatory bail. 3. Sri P. Vittal Rao, the learned Counsel for the petitioner, contends that merely because a warrant was issued by the Court against the accused after the charge-sheet was filed, it cannot be said that anticipatory bail cannot be granted. He also con-ends that the refusal to grant anticipatory bail on that ground is contrary to the provisions of section 438, Criminal Procedure Code. In support of his contention he relied upon the decision of the Supreme Court, in Gurbaksh Singh v. State of Punjab1. 4. The learned Public Prosecutor, on the other hand, contends that a charge-sheet was filed and a warrant was issued by the Court for the apprehension of the petitioner-accused and the petitioner cannot, therefore, be granted anticipatory bail. In support of his contention he relied upon a decision of a single Judge of this Court in N. Dasaraha Reddy v. State2 and also considered the decision of the Supreme Court in Gurbaksh Singh v. State of Punjab1. 5. In N. Dasaratha Reddy v. State2 my learned brother, S. Madhusudhan Rao, J., examined the question whether anticipatory bail under section 438, Criminal Procedure Code, can be granted to an accused against: whom the Magistrate issued a non-bailable warrant after a final report (charge-sheet) was filed by the Police. The learned Judge exa- *5th November, 1982. 5. In N. Dasaratha Reddy v. State2 my learned brother, S. Madhusudhan Rao, J., examined the question whether anticipatory bail under section 438, Criminal Procedure Code, can be granted to an accused against: whom the Magistrate issued a non-bailable warrant after a final report (charge-sheet) was filed by the Police. The learned Judge exa- *5th November, 1982. mined the several provisions in the new Code inregard to the arrest, remand and bail and ultimately observed that “an examination of the above provisions shows that the scheme of the Code for granting bails is to give primary jurisdiction to the Court which has taken cognizance of the case and the Court of Session or the High Court comes into the picture only after the Court which took cognizance of the offence exercised its jurisdiction by granting or refusing the bail. It is only section 438, that invests the Court of Session and the High Court with jurisdiction to grant anticipatory bail and the reason for not investing a Magistrate with this jurisdiction is that it is an extraordinary special power requiring the exercise of considerable care and caution. The provision is newly added to provide for a situation not covered by the other provisions in the Code. Read as a whole, the section shows that it is not designed to assist those who want to avoid the due process of law and to evade arrest pursuant to a warrant issued by a Court. The Court's process must be respected first before any one can seek the aid of a Court. If there is a warrant for the arrest of a person such person may submit himself to arrest or may himself appear before the Court and seek bail under section 437, Section 438 applies only to arrests while the Court's process has not been issued. That is clear if Section 438 (3) is read along with section 438 (1). The first limb of sub-section (3) of Section 438 contemplates arrests by a Police Officer without warrant and it happens only when the Court did not take cognizance of the offence and did not issue any warrant of arrest. The second limb of sub-section contemplates a Magistrate taking cognizance of the offence after the person has been granted anticipatory bail. The first limb of sub-section (3) of Section 438 contemplates arrests by a Police Officer without warrant and it happens only when the Court did not take cognizance of the offence and did not issue any warrant of arrest. The second limb of sub-section contemplates a Magistrate taking cognizance of the offence after the person has been granted anticipatory bail. There is no provision in section 438, Criminal Procedure Code, or any where in the Code for the grant of anticipatory bail to a person who apprehends arrest in pursuance of a warrant issued by a Magistrate taking cognizance of the offence. While Section 438 does not cover the case of an accused against whom a non-bailable warrant has been issued by a Court which took cognizance of an offence against him, section 439 provides for grant of bail by the, High Court or the Court of Session, only to “a person accused of an offence and in custody”. “Granting or refusing bail to an accused when a warrant of arrest is pending against him the same having been issued by a Court of a Magistrate who took cognizance of the offence, is essentially and primarily the jurisdiction of the Magistrate who issued the warrant and the superior Courts are not expected to pre-empt the exercise of such jurisdiction. The new provision in regard to anticipatory bail postulates a stage where the Court having jurisdiction over the offence has not taken cognizance of the offence. It does not take in its ambit the case, of an accused against whom a Court has already issued a warrant by taking cognizance of the offence.” 6. My learned brother, P. Ramachandra Raju, J., followed the above decision in Crl.M.P. No. 884 of 1981, dated 23rd April, 1981. The learned Judge adverted to the decision of the Supreme Court in Gurbaksh Singh v. State of Punjab1 and observed that the observations made by the Supreme Court do not cover the specific point at issue. Hence the learned Judge preferred to follow the decision of this Court. 7. The, above cited two rulings of the learned single Judge clearly show that anticipatory bail cannot be granted to the accused either by the Sessions Court or by the High Court when once N.B. Ws. are issued by the Magistrate for the apprehension of the accused. 8. Hence the learned Judge preferred to follow the decision of this Court. 7. The, above cited two rulings of the learned single Judge clearly show that anticipatory bail cannot be granted to the accused either by the Sessions Court or by the High Court when once N.B. Ws. are issued by the Magistrate for the apprehension of the accused. 8. Sri P. Vittal Rao, the learned Counsel for the petitioner, contends that the decision of Madhusudhan Rao, J., was rendered prior to the decision of the Supreme Court in Gurbaksh Singh v. State of Punjab1. Sri Vittal Rao contends that in the above cited decision the Supreme Court elaborately dealt with the scope and effect of the provisions of Section 438 and laid down the principles governing the matter and that the principles of the Supreme Court dearly show that the accused can be granted anticipatory bail at any stage before he was arrested. He also contends that the Supreme Court in the case cited above does not say that the Sessions Court or the High Court has no power or jurisdiction under Section 438 to grant anticipatory bail when once the Magistrate issued non-bailable warrant for the apprehension of the accused. He also contends that if there is a warrant pending against the accused, it is a ground for the accuseds to entertain apprehension of his arrest and when once he apprehends that his arrest is imminent, he is entitled to take the benefit of section 438, Criminal Procedure Code. 9. A perusal of the decision of the Supreme Court in Gurbaksh Singh v. State of Punjab1 clearly shows that their Lordships elaborately considered the, scope and effect of the provisions of Section 438 for the first time. Their Lordships of the Supreme Court observed in paragraph 7thus: “……An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued. In other words, unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. In other words, unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. Section 46 (1) of the Code of Criminal Procedure, which deals with how arrests are to be made, provides that in making the arrest, the police officer or other person making the arrest “shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action”. A direction under Section 438 is intended to confer conditional immunity from this ‘touch’ or confinement”. 10. Their Lordships then considered the legal position laid down by the Full Bench of the Punjab and Haryana High Court in Gurbaksh Singh v. State of Punjab2 and also the provisions of Section 437 and 439 of the Code of Criminal Procedure. Then their Lordships considered the ambit of section 437, Criminal Procedure Code, in Para. 12 and observed thus: “It has to be borne in, mind that anticipatory bail is sought when there is a mere apprehension of arrest on the accusation that the applicant has committed a non-bailable offence. A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. Thai is the stage at which it is imperative to protect his freedom, in so far as one may, and to give full play to the presumption that he is innocent. In fact, the stage at which anticipatory bail is generally sought brings about its striking dissimilarity with the situation in which a person who is arrested for the commission of a non-bailable offence asks for bail. In the latter situation, adequate data is available, to the Court, or can be called for by it, in the light of which it can grant or refuse relief and while granting it, modify it by imposition of all or any of the conditions mentioned in section 437.” In para. In the latter situation, adequate data is available, to the Court, or can be called for by it, in the light of which it can grant or refuse relief and while granting it, modify it by imposition of all or any of the conditions mentioned in section 437.” In para. 18 their Lordships observed thus: “Section 438 applies before the arrest is made and, in fact, one of the pre-conditions of its application is that the person who applies for relief under it, must be able to show that he has reason to believe that “he may be arrested”, which plainly means that he is not yet arrested. The nexus which this distinction bears with the grant or refusal of bail is that in cases falling under section 437, there is some concrete data on the basis of which it is possible to show that there appear to be reasonable grounds for believing that the applicant has been guilty of an offence punishable with death or imprisonment for life. In cases falling under Section 438 that stage is still to arrive and, in the generality of cases there under, it would be premature and indeed difficult to predicate that there are or are not reasonable grounds for so believing. The foundation of the belief spoken of in section 437 (1) by reason of which the Court cannot release the applicant on bail is, normally, the credibility of the allegations contained in the First Information Report. In the majority of cases falling under section 438, that data will be lacking for forming the requisite belief. If at all the conditions mentioned in, section 437 are to be read into the provisions of section 438, the transplantation shall have to be done without amputation. That is to say, on the reasoning of the High Court, section 438 (1) shall have to be read as containing the clause that the applicant “shall not” be released on bail “if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. In this process one shall have overlooked that whereas, the power under section 438 (1) can be exercised if the High Court or the Court of Session “Thinks fit” to do so, section 437 (1) does not confer the power to grant bail in the same wide terms. In this process one shall have overlooked that whereas, the power under section 438 (1) can be exercised if the High Court or the Court of Session “Thinks fit” to do so, section 437 (1) does not confer the power to grant bail in the same wide terms. The expression “if it thinks fit”, which occurs in section 438 (1) in relation to the power of the High Court or the Court of Session, is conspicuously absent in section 437 (1). We see no valid reason for re-writing Section 438 with a view, not to expanding the scope and ambit of the discretion conferred on the High Court and the Court of Session but, for the purpose of limiting it. Accordingly, we are unable to endorse the view of the High Court that anticipatory bail cannot be granted in respect of offences like criminal breach of trust for the mere reason that the punishment provided there for is imprisonment for life. Circumstances may broadly, justify the grant of bail in such cases too, though of course the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal”. 11. In para. 34 their Lordships observed “this should be the end of the matter, but it is necessary to clarify a few points which have given rise to certain misgivings. In para. 35 their Lordships observed thus: “section 438 (1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has “reason to believe” that he may be arrested for a non-bailable offence. The use of the expression “reason to believe” shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere “fear” is not ‘belief, for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the, belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively, because it is then alone that the Court can determine whether the applicant has reason to believe that he may be so arrested. The grounds on which the, belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively, because it is then alone that the Court can determine whether the applicant has reason to believe that he may be so arrested. section 438 (1) therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely. Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the questions for the decision of the. Magistrate concerned under section 437 of the Code, as and when an occasion arises. Such a course will defeat the very object of section 438. Thirdly, the filing of a first information report is not a condition precedent to the exercise of the power under section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not yet filed. Fourthly, anticipatory bail can be granted even after an F.I.R. is filed, so long the applicant has not been arrested. fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused. The grant of “anticipatory bail” to an accused who is under arrest involves a contradiction in terms, in so far as the offence or offences for which he is arrested, are concerned. After arrest, the accused must seek his remedy under section 437 or section 439 of the Code, if he wants to be released on bail in respect of the offences or offences for which he is arrested.” Their Lordships in Para. 36 observed thus: “We agree that a ‘blanket order’ of anticipatory bail should not generally be passed. After arrest, the accused must seek his remedy under section 437 or section 439 of the Code, if he wants to be released on bail in respect of the offences or offences for which he is arrested.” Their Lordships in Para. 36 observed thus: “We agree that a ‘blanket order’ of anticipatory bail should not generally be passed. This flows from the very language of the section which, as discussed above, requires the applicant to show that he has “reason to believe” that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's is genuine. That is why, normally, a direction should not issue under section 438 (1) to the effect that the applicant shall be released on bail “whenever arrested for whichever offence whatsoever.” That is what is meant by a ‘blanket order’ of anticipatory bail an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, no concrete information can possibly be had. The rationale of a direction under section 438 (1) is the, belief of the applicant founded on reasonable grounds that he may be arrested for a non-bailable offence. It is unrealistic to expect the applicant to draw up his application with the meticulousness of a pleading in a civil case and such is not requirement of the section. But specific events and facts must be disclosed by the applicant in order to enable the Court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power concerned by the section.” 12. The passages extracted above from the judgment of the Supreme Court clearly show that they did not state that an anticipatory bail can be or cannot be granted when a non-bailable warrant is issued by the Magistrate for the apprehension of the accused. But their Lordships made it clear in unequivocal terms that the anticipatory bail cannot be granted after the arrest of the accused and it should be granted only before the accused was arrested and only when the accused has reason to believe that he may be arrested. But their Lordships made it clear in unequivocal terms that the anticipatory bail cannot be granted after the arrest of the accused and it should be granted only before the accused was arrested and only when the accused has reason to believe that he may be arrested. Explaining as to what is meant by the expression in Section 438 “that he has reason to believe that he may be arrested”, their Lordships observed that the belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. If that be so, the issuance of warrant by a Magistrate would certainly create a genuine apprehension or fear that he may be arrested. Section 438 contemplates the grant of anticipatory bail before arrest of the accused either before the charge sheet is filed or even after charge sheet is filed and a non-bailable warrant is issued by the Magistrate for the apprehension of the accused. So long as he is not arrested though he is under imminent threat of arrest be is entitled to the benefit of Section 438 and this position does not alter merely because a non-bailable warrant is issued by the Magistrate for the apprehension of the accused after the charge sheet is filed. For this view, I, therefore, rely upon the above cited Supreme Court decision which clearly says that the accused is entitled to be granted anticipatory bail if he has reason to believe that he may be arrested. The accused is, therefore, entitled to approach this Court for the, grant of anticipatory bail under section 438. The question whether ultimately the Court can grant anticipatory bail or not is matter concerned with the discretion of the Court and it is dependant upon several circumstances of the case as observed by their Lordships of the Supreme Court in the above cited decision. 13. But the view which I have taken is in conflict with the view taken by my learned brother, Madhusudan Rao, J., which was also followed by my another learned brother P. Ramchandra Raju, J. Though I rely upon the above cited Supreme Court decision in support of my view, Ramachandra Raju, J., says that it does not deal with this question. Under these circumstances, I deem it necessary to refer the matter either to a Division Bench or to a Full Bench for the benefit of authoritative pronouncement on this aspect. Pursuant to the above order of reference of the High Court, this petition having been posted before the Division Bench. P. Vittal Rao, Advocate, for Petitioner. Additional Public Prosecutor on behalf of Respondent. The Judgment of the Bench was delivered by Kama Rao. J.- This criminal miscellaneous petition for anticipatory bail under section 438, Criminal Procedure Code, is directed to be posted before Divisions Bench by Punnayya, J., as it was felt that the decisions of Madhusudan Rao, J., in N. Dasaratha Reddy v. State1 and Ramachandra Raju, J., in Crl.M.P. No. 884 of 1981, dated 23rd April, 1981, require reconsideration in view of the decision of the Supreme Court in Gurbaksh Singh v. State of Punjab2. 15. The petitioner filed an application for anticipatory bail under section 438 , Criminal Procedure Code, as he apprehends arrest in a criminal case where the petitioner along with others are charge-sheeted for conspiracy to commit murder under section 120-B, Indian Penal Code. The main plea of the petitioner is that he is not in any way concerned with the crime and that he is an Agricultural B. Sc, graduate and even though his name is not mentioned in the first information report and even though at the initial stage he was not considered to be connected with the crime, he is sought to be implicated and the case is sought to be foisted on him at this belated stage and therefore, anticipatory bail should be granted to him. 16. The public prosecutor raised a preliminary objection as to the maintainability of this application. It is contended that the charge-sheet has been filed and the non-bailable warrant is issued by the Magistrate and at this stage, the, petitioner (is not entitled to invoke section 438, Criminal Procedure Code, and seek anticipatory bail. Even on merits also, this is not a fit case for granting anticipatory bail as two witnesses spoke to the participation of the petitioner in the conspiracy. 17. Even on merits also, this is not a fit case for granting anticipatory bail as two witnesses spoke to the participation of the petitioner in the conspiracy. 17. The relevant provision that controls the decision is section 438, Criminal Procedure Code, which is as follows: “438 (1) When any person has reason to believe that he may be arretted 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, he shall be released on bail. (2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit. including- (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make an inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section. (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 while 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 subsection (1).” Section 438 confers power on the High Court and the Court of Session to grant bail in the event of imminent arrest of a person. Section 438 comprises three facts, sub-section (1) is an enabling provision to seek direction for bail when a person reasonably apprehends the arrest on an accusation of non-bailable offence. Section 438 comprises three facts, sub-section (1) is an enabling provision to seek direction for bail when a person reasonably apprehends the arrest on an accusation of non-bailable offence. Sub- section 2 is concerned with the enumeration of conditions that may be imposed by the Court while granting anticipatory bail, subsection (3) pertains to implementation of the order and continuity of proceedings under Criminal Procedure Code in the event of order under section 438. The first limb of this sub section mandates the officer-in-charge of a police station to release the person on bail pursuant to the order under section 438. The second limb obligates the Magistrate to issue bailable warrant only instead of non-bailable warrant in the event of taking cognisance of the case subsequent to the order passed under sub- section (1). The power of the Magistrate to take cognizance of the case and issue a warrant is not fettered but he has to mould the warrant and issue bailable warrant in consonance with the order passed under sub- section (1). The provision is designed to save the person from arrest and consequent harassment or humility and the apprehension of arrest on an accusation of non-bailable offence confers right on the person to move for anticipatory bail. The Supreme Court in Gurbaksh Singh v. State of Punjab1 considered the amplitude of section 438 , Criminal Procedure Code, in the context of considering the correctness and appropriateness of the principles and strings propounded by the Full Bench of the Punjab High Court regarding the grant of anticipatory bail under section 438, Criminal Procedure Code. The anticipatory bail was sought for before the first information report was filed and the Full Bench of Punjab High Court while declining to grant bail held that section 438 , cannot be considered or pressed into service in isolation and it is conditioned by the provisions in Section 437 and 439, Criminal Procedure Code. The anticipatory bail was sought for before the first information report was filed and the Full Bench of Punjab High Court while declining to grant bail held that section 438 , cannot be considered or pressed into service in isolation and it is conditioned by the provisions in Section 437 and 439, Criminal Procedure Code. The essence of the principles enunciated by the Supreme Court are as follows: “The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the, later is granted in anticipation of arrest and is therefore effective at the very moment of arrest.” It is also observed at page 1648 as follows: “Thirdly the filing of a first information report is not a condition precedent to the exercise of the power under section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an first information report, is not yet filed. Fourthly, anticipatory bail can be granted even after an first information report is filed, so long as the applicant has not been arrested. Fifthly, the provisions of section 438, cannot be invoked after the arrest of the accused. The grant of ‘anticipatory bail’ to an accused who is under arrest involves a contradiction in terms, in so far as the offence or offences for which he is arrested, are concerned. After arrest, the accused must seek his remedy under section 437 or section 439 of the Code if he wants to be released on bail in respect of the offence or offences for which he is arrested.” The line of demarcation between Section 438 and Section 437 and 439, Criminal Procedure Code, was highlighted and in the context of considering the overlapping of the ingredients under the said provisions the Supreme Court observed that the demarcating line is the arrest. Regarding the ambit of the expression ‘reason to believe’ it is held as follows: “The applicant must show that he has ‘reason to believe’, that he may be arrested for a non-bailable offence. Regarding the ambit of the expression ‘reason to believe’ it is held as follows: “The applicant must show that he has ‘reason to believe’, that he may be arrested for a non-bailable offence. The use of the expression ‘reason to believe’ shows that the belief that the applicant may be so arrested must be founded on reasonable grounds.” The learned Public Prosecutor contended that the decision of Supreme Court is not applicable to the facts of the case as the charge sheet is filed and non-bailable warrant is issued by the Magistrate in the instant case. The learned Public Prosecutor heavily relied upon the decision of this Court in N. Dasaratha Reddy v. State2. After the completion of investigation the police Alurusubmitted 2 charge sheet against 3 accused for murder and the Munsif Magistrate, Aluru took cognizance of the same. As Exhibits A-1 and A-2 were already under remand and as Exhibit A-3 is reported by the Police to be arrested the Munsif Magistrate issued a non-bailable warrant against the petitioner. At this stage the applicant filed an application under section 438, before the Sessions Court, Kurnool to direct the Munsif Magistrate, Aluru to release the petitioner on bail in the event of his surrender before, the Court. The Sessions Court dismissed the application. In the context of considering this aspect it was held that Section 438 can be invoked upto the stage of commencement of process by the Court. Madhusudan Rao, J., held as follows: “The Court's process must be respected first before any one can seek the aid of a Court. If there is a warrant for the arrest of a person, such person may submit himself to arrest or may himself appear before the Court and seek bail under section 437. Section 438 applies only to arrests while the Court's process has not been issued. That is clear if Section 438 (3) is read along with section.” Ramachandra Raju, J., in Cr.M.P. No. 884 of 1981, dated 23rd April, 1981, agreed with the view taken by Madhusudan Rao, J., and held that this issue did not arise for consideration in the decision of the Supreme Court. 18. When the process of Court is set in motion by filing the charge-sheet and issue of non-bailable warrant the applicant is precluded from having recourse to section 438, Criminal Procedure Code, for anticipatory bail. 18. When the process of Court is set in motion by filing the charge-sheet and issue of non-bailable warrant the applicant is precluded from having recourse to section 438, Criminal Procedure Code, for anticipatory bail. Section 438 (3) , Criminal Procedure Code, makes the, position explicitly clear that the warrant has to be modulated if the order under section 438, precedes the initiation of proceedings before the Magistrate. Section 438 (3) is concerned with a situation of taking cognisance of the offence and issuance of warrant subsequent to or during the subsistence of the order under Section 438 (1), Criminal Procedure Code. The question of passing the order under Section 438 (1) is not visualised when the proceeding commences before the Magistrate. Section 438 (3) is confined to vary the warrant in the event of the, order under Section 438 and there is absolutely no indication of cancellation or withdrawal of warrant. Therefore, the power under Section 438 does not survive the initiation of proceedings by filing charge sheet and issue of arrest warrant. In the absence, of provision for cancellation or withdrawal of warrant the situation of parallel exercise of power arises when the order under Section 438 is passed subsequent to issue of warrant. The essence, of Section 438 (3) is that the Magistrate has to vary the warrant if the proceedings commence after the order is passed under section 438 (1) and the terminal of the exercise of power under Section 438 is the initiation of proceedings under Criminal Procedure Code, by the Magistrate. 19. While doubting the correctness of the decision of Madhusudhan Rao, Ramachandra Raju and Punnayya, JJ., in his order of reference held that the exercise of power under section 438, Criminal Procedure Code, extents to the stage of actual arrest and the issuance of non-bailable warrant provokes an imminent apprehension of arrest. The power under Section 438 is exhausted on actual arrest only and the issuance of non-bailable warrant and the process of taking cognizance by the Magistrate does not impede or arrest the exercise of power under section 438 , Criminal Procedure Code, Punnayya, J., profusely referred to the observations of the Supreme Court made in the context of exercise of power under section 438, Criminal Procedure Code, at the stage of filing the first information report. The Supreme Court did not have the occasion to consider the impact of sub- section (3) of section 438. The Supreme Court while considering the exercise of power under section 438 , when the first information report, is filed, stated that Section 438 continues to have its way even after the first information report is filed. The Supreme Court is not concerned with the situation of issue of non-bailable warrant at the time the power under Section 438 is invoked and there was no occasion to consider the impact of Section 438 (3), Criminal Procedure Code. In the circumstances, we approve the judgment of Madhusudhan Rao, J., in N. Dasaratha Reddy v. State1. Therefore, the preliminary objection raised as to the maintainability of this petition by the learned Public Prosecutor is sustainable and this petition is not maintainable at this stage. 20. On merits also it is stated by the learned Public Prosecutor that this is not a fit case for anticipatory bail. The charge-sheet is already filed and two persons spoke to the participation of the petitioner in the conspiracy and therefore, the charge-sheet laid under section 120-B, Indian Penal Code, is already pending. In view of the fact that the two witnesses already spoke to the fact of participation of the petitioner in the conspiracy, we feel that this is not a fit case for granting anticipatory bail even on merits. Hence, this petition is dismissed. R.S.R. ----- Crl. M.P. dismissed.