ORDER

1. These two petitions have been filed against the orders made by a learned Single Judge of the Delhi High Court dated 9-10-1996 and 11-10-1996; the first being an order directing that in the event of the arrest of the accused persons pursuant to the order of the Chief Metropolitan Magistrate, Delhi, dated 4-10-1996, the accused shall be released on bail on each of them furnishing a personal bond in the sum of Rs. 25,000 with one surety in like amount to the satisfaction of the arresting officer/superior officer and the duration of this anticipatory bail shall be up to 14-10-1996 when, on that date the accused shall appear before the said learned Magistrate and apply for regular bail which application shall be decided by the court in accordance with law. By the second order dated 11-10-1996 the learned Judge insofar as accused K. L. Verma is concerned, directed notice to issue on the question whether sanction under Section 197 of the Criminal Procedure Code (hereinafter called "the Code") was required for taking cognizance in his case since he was at the relevant point of time a public servant and made the notice returnable on 1-11-1996. However, the learned Judge refused to grant stay of further proceedings but merely issued notice on the stay application. The effect of this is that the non-bailable warrant issued by the Chief Metropolitan Magistrate would be executed against him also before the Court decides the issue whether or not sanction under Section 197 of the Code was a sine qua non for taking cognizance of the offence alleged to have been committed by him.

2. Ordinarily, we would have been loath to hear this matter today, but owing to the urgency created by the High Courts order dated 9-10-1996 whereunder anticipatory bail would enure up to 14-10-1996 i.e. till tomorrow only, and the possibility of arrest on the execution of the non-bailable warrants against the accused persons being real pending decision on the bail applications, and in the case of K. L. Verma, pending decision on his plea that sanction under Section 197 of the Code was a must for taking cognizance, we felt constrained to hear the same today. We have been constrained to take up the matter today as it cannot wait even till tomorrow since it is a question of liberty of the individuals concerned.

3. We have carefully examined both the orders of 9-10-1996 and 11-10-1996 and have also heard counsel for the accused as well as counsel for the CBI and we are of the opinion that the proper course for the High Court was to decide on the question of the requirement of sanction and if the High Court could not do so, to have stayed further proceedings till that vital question was answered. On the other question emanating from the order dated 9-10-1996, we find that the High Court placed reliance on this Courts decision in Salauddin Abdulsamad Shaikh v. State of Maharashtra ((1996) 1 SCC 667 : 1996 SCC (Cri) 198) which was a case in which the High Court, while granting interim anticipatory bail, imposed certain conditions, one of which was that the accused should move for regular bail before the Court which was in seisin of the case pending against him. The High Court also observed that the application should be disposed of uninfluenced by the observations made in the earlier order. The special leave petition was directed against that order of the High Court. While dealing with that order, this Court observed that under Section 438 of the Code, when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, the High Court or the Court of Session may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail and in passing that order, it may include such conditions as it may deem appropriate. This Court further observed that anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the regular court, which is to try the off