IMPORTANT POINT
The place where a person apprehends arrest is a sure for determining jurisdiction of the High Court or the Court of Session to grant an order of anticipatory bail u/s. 438 of the Criminal Procedure Code.

ORDER

P.A. Mohammed, J. - This is an application filed under Section 438 of the Code of Criminal Procedure, 1973 (for short 'the Code'). It came before us on a reference made by a learned single Judge. The point involved is whether this High Court has jurisdiction to grant an order of 'anticipatory bail' under Section 438 of the Code on the ground that the petitioner apprehends his arrest, here, though the alleged offence was committed at a place situate within the territorial limits of Madhya Pradesh High Court. Bhaskarar Nambiar, J. has held in C.I. Mathew v. Govt. of India1, that the court within whose limits the arrest is apprehended has also jurisdiction to grant the order under Section 438 of the Code. Pareed Pillay, J. who referred this matter to a larger bench expressed that "an authoritative decision by a Division Bench of this Court" is required in view of the different opinion pronounced by Punjab and Haryana High Court in Ravinder Mohan v. State of Punjab2.

2. Facts of this case can be briefly stated thus. The petitioner is residing at Palakkad in Kerala State. He placed an order for supply of certain goods with the second respondent, who is a trader at Mandasaur (Indore District in Madhya Pradesh), through a commission agent. The goods were found badly damaged when they reached Palakkad. Though the damage was reported to the second respondent, he requested the petitioner to take delivery of the goods and secured necessary endorsement from the Bank at Mandasaur. Pursuant thereto, delivery was effected after incurring an expense of Rs. 15,000/-. But second respondent issued a notice to the petitioner claiming a sum of Rs. 1,50,000/- towards value of goods and damages. He sent a reply thereto repudiating the claim and at the same time narrating the facts which are true, according to him. But second respondent filed a complaint before Chief Judicial Magistrate, Mandasaur for offences under Sections 406 and 420 of the Indian Penal Code with the petitioner as accused, Chief Judicial Magistrate, Mandasaur, took cognizance of the offences and issued warrant of arrest against the petitioner. This application is filed by the petitioner as he apprehends that he would be arrested here.

3. Section 438 of the Code consists of three sub-sections. First sub-section reads thus:

"When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, be 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."

Sub-section (2) says that the High Court or the Court of Session may include such conditions as it thinks fit including four conditions suggested in the sub-section. Sub-section (3) provides for the contingency when the person, in whose favour an order has been passed, is thereafter arrested without warrant by an officer in charge of a police station.

4. In order to decide the question referred to us for decision, an understanding of the legislative object behind Section 438 of the Code would be useful.

5. The liberty of individual with due observance of law and order is protected in Article 21 of the Constitution. It mandates that no person shall be deprived of the life or personal liberty except according to the procedure established by law. Article 22(2) guarantees protection against arrest and detention subject to the conditions mentioned therein. Every person, who is arrested and detained in custody, shall be produced before the nearest magistrate within a period of 24 hours of such arrest (excluding the time necessary for the journey from the place of arrest to the court of the magistrate) and no such person shall be detained in custody beyond the said period without the authority of a magistrate. Chapter XXXIX of the Code of Criminal Procedure, 1898 (for short 'the old Code') dealt with the provisions regarding grant of bail by the