The main legal point established in the judgment is the distinction between anticipatory bail under Section 438 and regular bail under Section 439 of the Code, emphasizing the limited duration of anticipatory bail and the requirement of the accused to be in custody for making an application under Section 439.

ARIJIT PASAYAT, J.

( 1 ) LEAVE granted.

( 2 ) CHALLENGE in this appeal is by the informant to the order passed by a learned Single Judge of the Patna High Court disposing of three petitions filed by respondent nos. 1, 2 and

( 3 ) BY the said petitions, the prayer for protection in terms of section 438 of the Code of Criminal Procedure, 1973 (in short the Code') was accepted. 3. Learned counsel for the appellant submitted that while allowing the protection in terms of Section 438 of the Code the high Court has not kept in view the parameters indicated by this Court for granting such protection. Even otherwise, the high Court has pre-empted the framing of charges. It is also pointed out that the High Court has committed several errors on facts, for example it observed that the accused persons were not named in the first information report (in short the 'fir') though they were specifically named in the FIR.

( 4 ) LEARNED counsel for the respondents on the other hand submitted that without any material to show that the accused persons were involved in any conspiracy to do away with the deceased, false implications have been made with mala fide intent. The deceased was involved in several cases. It was submitted that the High Court had taken note of the position that the materials so far as the respondents are concerned for alleged conspiracy were contained in paragraphs 39, 41 and 42 of the case diary. It is submitted that learned counsel for the informant before the High Court had also conceded that they contained the materials relating to the accused persons.

( 5 ) AS rightly contended by learned counsel for the appellant, granting blanket protection under Section 438 of the Code is not envisaged. There is also substance in the submission of learned counsel for the appellant that the High court has wrongly noted that the accused persons were not named in the FIR, in fact they were specifically named.

( 6 ) 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 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 the Police Officer or other person making the same "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". The order under Section 438 of the Code is intended to confer conditional immunity from the touch as envisaged by Section 46 (1) of the Code or any confinement. This Court in Balachand jain v. State of Madhya Pradesh (AIR 1977 SC 366) has described the expression 'anticipatory bail' as misnomer. It is well-known that bail is ordinary manifestation of arrest, that the Court thinks first to make an order is that in the event of arrest a person shall be released on bail. Manifestly there is no question of release on bail unless the accused is arrested, and therefore, it is only on an arrest being effected the order becomes operative. The power exercisable under Section 438 is somewhat extraordinary in character and i