Judgement

BHAGWATI, J. (for himself and on behalf of A. C. Gupta J.) :- The facts giving rise to this appeal are set out in the judgment about to be delivered by our learned brother S. Murtaza Fazl Ali and it is, therefore, not necessary to reiterate them. The question which for determination on these facts is a short one and it is : whether an order of anticipatory bail can be competently made by a Court of Session or a High Court under Section 438 of the Code of Criminal Procedure, 1973 in case of offences falling under Rule 184 of the Defence and Internal Security of India Rules, 1971 made under the Defence and Internal Security of India Act, 1971 (hereinafter referred as the Act).

2. There was at one time conflict of decisions amongst different High Courts in India about the power of a court to grant anticipatory bail. The majority view was that there was no such power in the court under the old Criminal Procedure Code. The Law Commission, in its Forty First Report pointed out :

"The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing sings of steady increase. Apart from false cases, where there are reasonable grounds for holding that a persons accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody remain in prison for some days and then apply for bail.", and recommended introduction of a provision for grant of anticipatory bail. This recommendation was accepted by the Central Government and clause (447) was introduced in the draft Bill of the new Code of Criminal Procedure conferring express power on a Court of Session of a High Court to grant anticipatory bail. Commenting on this provisions in the draft Bill, the Law Commission observed in paragraph 31 of its Forty-Eighth Report :

"The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendations made by the previous Commission (41st Report). We agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised.

We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the public prosecutor. The initial order should only be an interim one. Further the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the Court is satisfied that such a direction is necessary in the interests of justice." (Clause 447) became Sec. 438 when the Bill was enacted into the new Code of Criminal Procedure. That section is in the following terms :

"(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offences, 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) x x x x"

We do not find in this section the words anticipatory bail, but that is clearly the subject with which the section deals. In fact anticipatory bail is a misnomer. It is not as if bail is presently granted by the Court in anticipation of arrest. When the Court grants anticipatory bail, what it does is to make an order that in the event of arrest, a person shall be released on bail. Manifestly there is no question of release on bail unless a person is arrested and therefore, it is only on arrest that the order granting anticipatory bail becomes operative. Now, this power of granting anticipatory bail is somewha