ORDER A.K. Saxena, J. 1. This is an application under Section 439 read with Section 439(1)(b) of the Code of the Criminal Procedure, 1973 (hereinafter referred to as 'the Code') for regular bail in connection with M.J.C. No. 02/07 of the Court of Chief Judicial Magistrate, Jabalpur and crime no. 546/06 of the Police Station Ranjhi, Jabalpur. 2. According to the facts of the case, the prosecutrix lodged the FIR in the Police Station Ranjhi, Jabalpur and the Crime No. 546/06 was registered under Section 376 of the Indian Penal Code against the applicant, but during investigation, the police found that no case is made out against the applicant and, therefore, a 'Khatma' report was submitted by the concerned Police Station. The Chief Judicial Magistrate issued the notice to the prosecutrix on this 'Khatma' report and thereafter, the statements of the prosecutrix and her witnesses were recorded and then the Court took the cognizance against the applicant. Thereafter, the non-bailable warrant was issued against the applicant. 3. An anticipatory bail application was filed by the applicant before the Court of Session but it was dismissed as not pressed because a revision petition was filed against the order of the Chief Judicial Magistrate. After rejection of revision petition, another application for anticipatory bail was filed in the Sessions Court and the same was allowed vide order dated 12.10.2007 with the conditions that the order shall remain in force for 30 days and in the meanwhile, the applicant, if so desires, may move an application for regular bail. Thereafter, the applicant moved an application under Section 439 of the Code, but the same was rejected by the Sessions Court vide order dated 2.11.2007 on the ground that this application is not maintainable directly in the Sessions Court because an application under Section 437 of the Code should have been filed in the Court of Chief Judicial Magistrate before filing an application under Section 439 of the Code. 4. After rejection of bail application which was filed under Section 439 of the Code, the Sessions Court extended the anticipatory bail period upto 12.11.2007 vide order dated 6.11.2007 and, therefore, the application for regular bail has been filed before this Court. 5. 4. After rejection of bail application which was filed under Section 439 of the Code, the Sessions Court extended the anticipatory bail period upto 12.11.2007 vide order dated 6.11.2007 and, therefore, the application for regular bail has been filed before this Court. 5. The learned Counsel for the applicant has submitted that since, the Magistrate was not empowered to grant bail under the provisions of Section 437 of the Code, as the case has been registered for the offence punishable under Section 376 of the I.P.C. and under this Section, the sentence of imprisonment for life has been provided, therefore, it was not necessary to file an application under Section 437 of the Code before the Court of Chief Judicial Magistrate and the applicant was at liberty to file regular bail application before the Sessions Court, directly as the Sessions Court was the competent Court for consideration of this bail application. He placed his reliance on the cases of Sadiq Hussain Rizvi v. Sri Santosh Kumar Trivedi and Ors. 1987 (2) Crimes 604 , Shyam Lal and Ors. v. State of U.P. and Rafuquddin and Ors. v. Bashir Ahmad and Ors. 1985 (1) Crimes 1076 . 6. The learned Counsel for the objector has contended that there are discretionary powers of the Court other than the High Court or Court of Session to consider as to whether there appear reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life and if there are no reasonable grounds for believing such facts, the person can be granted bail by the Magistrate under Section 437 of the Code and, therefore, it was necessary for the applicant to file an application under Section 437 of the Code, rather filing an application under Section 439 of the Code directly before the Court of Session. He also placed his reliance on the cases of Prahlad Singh Bhati v. N.C.T., Delhi and Anr. 2001CriLJ1730 , Nirbhay Singh and Anr. v. State of MP 1995 JLJ 21 and Gurcharan Singh and Ors. v. State (Delhi Administration) 1978CriLJ129 . 7. The learned Counsel for the objector also filed a written objection in this matter and further argued that the regular bail application of the applicant has not been dismissed on merits by the Sessions Court and the order impugned could have been challenged by filing revision only. v. State (Delhi Administration) 1978CriLJ129 . 7. The learned Counsel for the objector also filed a written objection in this matter and further argued that the regular bail application of the applicant has not been dismissed on merits by the Sessions Court and the order impugned could have been challenged by filing revision only. It was also argued that after issuance of arrest warrant, an anticipatory bail order cannot be passed in favour of the applicant or in other words, the application for anticipatory bail is not maintainable. The anticipatory bail, granted by the Sessions Court, was for a limited duration and thereafter, if an application for regular bail was rejected by the Court below, the regular bail application is not maintainable in this Court as the applicant is not in custody. For the above arguments, the learned Counsel for the objector relied on the cases of Sunita Devi v. State of Bihar and Anr. 2005 (2) MPLJ 406 and Salauddin Abdulsamad Shaikh v. State of Maharashtra 1996CriLJ1368 . 8. Both the learned Counsels have also relied on the principles laid down in the case of Rajul Rajendranath Dubey v. State of M.P. 2006 (3) MPHT 65 . 9. Whether an anticipatory bail can be granted for a limited period or unlimited period, this is not the question for consideration here. Whether after issuance of arrest warrant, a person can be granted anticipatory bail or not, this is also not a question involved in the present matter and, therefore, this Court would refrain itself from considering all these points in this case. 10. No doubt, the bail application for regular bail was not considered by the Sessions Court on merits. It was dismissed only on this grounds that the application for regular bail should have been filed before the Court of Magistrate under Section 437 of the Code and an application under Section 439 of the Code cannot be filed in the Court of Session, directly. No doubt, this Court is not considering the revision petition, but if an application under Section 439 of the Code is maintainable in this Court certainly, this Court can consider as to who is the competent Court to consider such type of bail applications. No doubt, this Court is not considering the revision petition, but if an application under Section 439 of the Code is maintainable in this Court certainly, this Court can consider as to who is the competent Court to consider such type of bail applications. Therefore, it would be appropriate for this Court to consider whether the Sessions Judge could have considered the bail application on merits which was filed under Section 439 of the Code. 11. As far as the question of maintainability of this application is concerned, though the regular bail application of the applicant was not considered on merits by the Sessions Court but since the regular bail application was dismissed by the Sessions Court certainly, the application under Section 439 of the Code shall be maintainable before this Court for many reasons. Though, the applicant is not in custody and this Court has laid down in the case of Rajul Rajendranath Dubey (supra) that if a person is granted anticipatory bail and after rejection of regular bail application by the Court below, if he is not in custody, his regular bail application would not be maintainable in 'higher Court'. But this principle would not be applicable in the present case because after rejection of regular bail application, the Court of Session extended the anticipatory bail period. Whether the order of extension of period of anticipatory bail was legal or illegal, it is not a mater of consideration here because, the legality or illegality of this order is not challenged by the objector under the appropriate provisions of the Code and at the time of consideration of an application under Section 439 of the Code, it would not be proper for this Court to adjudicate legality or illegality of the order dated 6.11.2007 passed by the Sessions Court. Since the period of anticipatory bail was extended by the Sessions Court, the application filed under Section 439 of the Code is maintainable in this Court. The bail application, filed under Section 439 of the Code, was not decided on merits by the Sessions Court, therefore, this Court would refrain itself from considering this bail application on merits. 12. Now the question arises before this Court for consideration that if a person is granted anticipatory bail, which Court would be the competent Court to consider regular bail application where the offence is punishable with death or imprisonment for life ? 12. Now the question arises before this Court for consideration that if a person is granted anticipatory bail, which Court would be the competent Court to consider regular bail application where the offence is punishable with death or imprisonment for life ? 13. Wherever a person is granted anticipatory bail for a limited duration with liberty to file an application for regular bail before the competent Court, it is for that person to file an application for regular bail before the competent Court, but who shall be the competent Court in case where the offence is punishable with death or imprisonment for life,, there is an ambiguous position in this respect. It would be proper to refer the provisions of Section 437(1)(i) and its two provisos which run as follows: 437. When bail may be taken in case of non- bailable offence.-[(1) 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, but (i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; Provided that the Court may direct that a person referred to in Clause (i) or Clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm: Provided further that the Court may also direct that a person referred to in Clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason: 14. In the case of Gurcharan Singh (supra), it has been laid down as follows: 21. Section 437, Cr.P.C. is concerned only with the Court of Magistrate. It expressly excludes the High Court and the Court of Session. The language of Section 437(1) may be contrasted with Section 437(7) to which were have already made a reference. In the case of Gurcharan Singh (supra), it has been laid down as follows: 21. Section 437, Cr.P.C. is concerned only with the Court of Magistrate. It expressly excludes the High Court and the Court of Session. The language of Section 437(1) may be contrasted with Section 437(7) to which were have already made a reference. While under Sub-section (1) of Section 437, Cr.P.C. the words are : "if there appear to be reasonable grounds for believing that he has been guilty", Sub-section (7) says: "that there are reasonable grounds for believing that the accused is not guilty of such an offence". This difference in language occurs on account of the stage at which the two sub-sections operate. During the initial investigation of a case in order to confine a person in detention, there should only appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. Whereas after submission of charge-sheet or during trial for such an offence the Court has an opportunity to form somewhat clear opinion as to whether there are reasonable grounds for believing that the accused is not guilty of such an offence. At that stage the degree of certainty of opinion in that behalf is more after the trial is over and judgment is deferred than at a pre-trial stage even after the charge-sheet. There is a noticeable trend in the above provisions of law that even in case of such non-bailable offences a person need not be detained in custody for any period more than it is absolutely necessary, if there are no reasonable grounds for believing that he is guilty of such an offence. There will be, however, certain overriding considerations to which we shall refer hereafter. Whenever a person is arrested by the police for such an offence, there should be materials produced before the Court to come to a conclusion as to the nature of the case he is involved in or he is suspected of. If at that stage from the materials available there appear reasonable grounds for believing that the person has been guilty of an offence punishable with death or imprisonment for life, the Court has no other option than to commit him to custody. If at that stage from the materials available there appear reasonable grounds for believing that the person has been guilty of an offence punishable with death or imprisonment for life, the Court has no other option than to commit him to custody. At that stage, the Court is concerned with the existence of the materials against the accused and not as to whether those materials are credible or not on the merits. 15. It has also been observed in paragraph 13 of this case that There is no provision in the Code whereby the accused is for the first time produced after initial arrest before the Court of Session or before the High Court. Section 437(1), Cr.P.C., therefore, takes care of the situation arising out of an accused being arrested by the police and produced before a Magistrate. 16. It has also been laid down in the case of Prahlad Singh Bhati (supra) that 6. Even though there is no legal bar for a Magistrate to consider an application for grant of bail to a person who is arrested for an offence exclusively triable by a Court of Session yet it would be proper and appropriate that in such a case the Magistrate directs the accused person to approach the Court of Session for the purposes of getting the relief of bail. Even in a case where any Magistrate opts to make an adventure of exercising the powers under Section 437 of the Code in respect of a person who is suspected of the commission of such an offence, arrested and detained in that connection, such Magistrate has to specifically negate the existence of reasonable ground for believing that such an accused is guilty of an offence punishable with the sentence of death or imprisonment for life. In a case where the Magistrate has no occasion and in fact does not find, that there were no reasonable grounds to believe that the accused had not committed the offence punishable with death or imprisonment for life, he shall be deemed to be having no jurisdiction to enlarge the accused on bail. 7. Powers of the Magistrate, while dealing with the applications for grant of bail, are regulated by the punishment prescribed for the offence in which the bail is sought. 7. Powers of the Magistrate, while dealing with the applications for grant of bail, are regulated by the punishment prescribed for the offence in which the bail is sought. Generally speaking if punishment prescribed is for imprisonment for life and death penalty and the offence is exclusively triable by the Court of Session, the Magistrate has no jurisdiction to grant bail unless the matter is covered by the provisos attached to Section 437 of the Code The limitations circumscribing the jurisdiction of the Magistrate are evident and apparent. Assumption of jurisdiction to entertain the application is distinguishable from the exercise of the jurisdiction. 17. The opening words of Section 437 of the Code are very important. According to it, when any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without any warrant by an officer-in charge of a police station or appears or is brought before the Court other than the High Court or Court of Session, he may be released on bail. Here, the words 'arrested', 'detained, 'appears' or 'brought before the Court' are very important. These words clearly indicate that while considering the bail application under Section 437 of the Code, a person must be arrested or detained by the police or he himself appears or brought before the Court and then only, the application for bail can be considered by the Magistrate as per provisions of Section 437 of the Code. 18. The provisions of Section 437(1)(i) of the Code clearly indicate that the Magistrate must reach at a conclusion that there appear reasonable grounds for believing that the person has been guilty of an offence punishable with death or imprisonment for life at the time of consideration of bail application under Section 437 of the Code. In other words, if a person is arrested or detained by the police or he appears or is brought before the Court where the offence is punishable with death or imprisonment for life and there appear reasonable grounds that he has been guilty of such an offence, the Magistrate has no power to grant bail. In other words, if a person is arrested or detained by the police or he appears or is brought before the Court where the offence is punishable with death or imprisonment for life and there appear reasonable grounds that he has been guilty of such an offence, the Magistrate has no power to grant bail. It means, the condition precedent for maintainability of bail application under Section 437 of the Code in the Court of Magistrate where the offence is punishable with death or imprisonment for life, shall be that the accused must appear or brought before the Court or he has been arrested or detained by the police otherwise the Magistrate would not be competent to consider the bail application under Section 437 of the Code of such an accused. So the position would be that where an accused has been arrested or detained by the police or he appears or is brought before the Court of Magistrate, he cannot file an application for bail under Section 439 of the Code before the Court of Session directly and in such circumstances, the competent Court would be the Court of Magistrate and not the Court of Session. 19. The above position of competency of the Court would be changed where a person is not arrested or detained by the police or he does not appear or is not brought before the Court and if he files an application for anticipatory bail before the competent Court and he was granted anticipatory bail with the liberty that he may move an application for regular bail before the competent Court. In such circumstances, the competent Court would be the Court of Session for consideration of regular bail application because the nature of the offence, apart from other facts, had been considered by a competent Court at the time of consideration of anticipatory bail application. It means, after considering this fact, expressly or impliedly, whether the person has been guilty of an offence punishable with death or imprisonment for life, the person was granted anticipatory bail by the Court. If this exercise has been done by a competent Court at the time of consideration of anticipatory bail application, then no occasion arises for the Magistrate to consider all these aspects of the case. If this exercise has been done by a competent Court at the time of consideration of anticipatory bail application, then no occasion arises for the Magistrate to consider all these aspects of the case. In such circumstances, the competent Court would be the Court of Session for consideration of regular bail application and not the Court of Magistrate. Where the Court considered the case of the prosecution or of the complainant at the time of consideration of anticipatory bail application and thereafter the anticipatory bail application was allowed certainly, it is not necessary for that person whose anticipatory bail application was allowed, to appear before the Court of Magistrate at the time of filing of an application under Section 437 of the Code as per law laid down by this Court in the case of Rajul Rajendranath Dubey (supra). Even if a prima facie case is made out for the offence punishable with death or imprisonment for life and the person has been granted anticipatory bail by the competent Court under Section 438 of the Code, then also, it would be a futile exercise to file an application of bail under Section 437 of the Code before the Court of Magistrate. In the above circumstances, the competent Court would be the Court of Session and not the Court of Magistrate for consideration of regular bail application. 20. Having considered all the aspects, this Court is of the view that if a person is arrested or detained by the police or if he appears or is brought before the Court in connection with an offence punishable with death or imprisonment for life, the Magistrate shall be competent to consider the bail application under Section 437 of the Code and such person shall not be entitled to file an application under Section 439 of the Code in the Court of Session, directly. But where a person is granted anticipatory bail by a Court in a case where the offence is punishable with death or imprisonment for life, after considering all the aspects of the case including the nature of offence and punishment provided for it, expressly or impliedly or the Magistrate, at the time of taking cognizance, applied his mind and found that a particular offence is made out prima facie for taking cognizance and if that offence is punishable with death or imprisonment for life, in such circumstances, the Court of Session would be the competent Court to consider the regular bail application under Section 439 of the Code and the Court of the Magistrate would not be the competent Court to consider the bail application because in such circumstances, the filing of an application under Section 437 of the Code, would be a futile exercise and it is not the intention of the legislature that a person must go into the jail before grant of regular bail though, he was granted anticipatory bail. This principle shall also be applicable to a woman or to those persons who are sick, infirm or under the age of sixteen years, irrespective of the fact that a special provision has been made under Section 437 of the Code for grant of baidl. 21. In the present case, the position is much better for the applicant because when the 'Khatma' report was filed before the Court of Chief Judicial Magistrate, the notice was issued to the prosecutrix and after recording the statements of the prosecutrix and her witnesses, the cognizance was taken in respect of the offence punishable under Section 376 of the I.P.C. It shows that in the opinion of the Magistrate, there appear reasonable grounds for believing that the applicant has been guilty of the offence punishable with imprisonment for life and because of that, the non-bailable warrant was issued after taking cognizance. In these circumstances, the filing of an application under Section 437 of the Code would be totally unnecessary because the bail application will not be allowed as the Magistrate had already applied his mind on this point that a prima facie case is made out against the applicant under Section 376 of I.P.C. which is punishable with imprisonment for life and, therefore, he has to reject the bail application and then the applicant will be sent to jail, whereas he had already been granted anticipatory bail by the competent Court. In these circumstances, it was not necessary at all for the applicant to file an application under Section 437 of the Code before the Court of Chief Judicial Magistrate and the application under Section 439 of the Code was maintainable directly before the Court of Session. 22. Since the bail application for regular bail has not been considered on merits by the Court of Session, therefore, the application filed under Section 439 read with Section 439(1)(b) of the Code is disposed of with these directions that the applicant will be at liberty to move an application under Section 439 of the Code before the Court of Session within 10 days from today and the same shall be disposed of on merits within 20 days from the date of filing of bail application. The order passed by this Court on 5.12.2007 in this matter, shall remain in force till the disposal of regular bail application, if filed, before the Court of Session.