judgment

Dr. Arijit Pasayat, J. —

1.Leave granted.

2.Challenge in this appeal is to the order passed by the Division Bench of the Allahabad High Court passed on a petition under Article 226 of the Constitution of India, 1950 (for short ‘The Constitution’).

3. The appellant was married to respondent No.1 on 12.11.2005. Alleging that she was being harassed for non-fulfilment of the demand of dowry, a complaint was filed at Thana, Jawan Police Station, District Aligarh. On the basis of appellant’s complaint Crime No.277 of 2006 was registered for alleged commission of offences punishable under Sections 498A, 323, 504 and 506 of the Indian penal Code, 1860 (for short ‘The IPC’) and Sections 3/4 of the Dowry Prohibition Act, 1961 (for short ‘The Dowry Act’). Respondent Nos.1 to 6 filed a writ petition for quashing the F.I.R. and for stay of arrest pending the disposal of the writ petition. The writ petition was filed on 1.11.2006. By the impugned order dated 7.11.2006 the High Court declined to accept the prayer for stay of arrest of the respondents but nevertheless passed the following order:

“Considering the facts and circumstances of the case, in the event the petitioners put in their appearance or are produced before the courts below and make application for their release on bail in case crime No. 277 of 2006 under Sections 498-A, 323, 504 and 506 I.P.C., Police Station Jawan, District Aligarh, the same shall be heard and disposed of expeditiously in accordance with law and in case of petitioner Nos.1 to 5, if the learned Magistrate does not find fit case to release them on bail, they shall be released on personal bond of Rs.30,000/- each and they shall remain on the same personal bonds till the final disposal of their bail application, if any, by the Court of Sessions and that too within a week thereafter.”

4.Learned counsel for the appellant submitted that virtually there has been exercise of power under Section 438 of the Criminal Procedure Code, 1973 (in short ‘The Cr.P.C.’). It is pointed out that in the State of U.P., Section 438 Cr.P.C. has no application.

5.The learned counsel for respondent Nos.7 to 9 submitted that the direction given by the High Court is clearly contrary to the decision of this Court in Adri Dharan Das Vs. State of West Bengal,1 (2005 (4) SCC 303).

6.There is no appearance on behalf of respondent Nos.1 to 6 in spite of service of notice.

7.As rightly contended by the learned counsel for the appellant, presently Section 438 Cr.P.C. has no application to the State of U.P. Even otherwise, as noted in Adri Dharan Das’s case (supra), after surrender of accused and rejection of his bail application, the protection of the nature granted by the High Court cannot be given. In this context paragraphs 7, 8, 9 10, 11, 12 and 13 of Adri Dharan Das’s case (supra) are relevant. They read as follows:

“7.The facility which Section 438 of the Code gives is generally referred to as ‘anticipatory bail’. This expression which was used by the Law Commission in its 41st Report is neither used in the section nor in its marginal note. But the expression ‘anticipatory bail’ is a convenient mode of indication that it is possible to apply for bail in anticipation of arrest. Any order of bail can be effective only from the time of arrest of the accused. Wharton’s Law Lexicon explains ‘bail’ as ‘to set at liberty a person arrested or imprisoned, on security being taken for his appearance.’ Thus bail is basically release from restraint, more particularly the custody of Police. The distinction between an ordinary order of bail and an order under Section 438 of the Code is that whereas the former is granted after arrest, and therefore means release from custody of the Police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest.(See: Gur Baksh Singh v. State of Punjab,2 1980(2) SCC 565). Section 46(1) of the Code, which deals with how arrests are to be made, provides that in making an arrest