Heard learned counsel for the parties.

2. Both the above applications have been filed for modification of order dated 26.11.2012 passed in Cr. Misc. Nos. 31928 and 32638 of 2012 whereby the anticipatory bail applications of the petitioners were disposed of with a direction to the learned court below to consider the regular bail applications of the petitioners in view of the submissions made by the learned counsel for the petitioners that the petitioners were on police bail in connection with Chakmehsi P.S. Case No. 7 of 2012 registered under Sections 379,468 and 353 of the Indian Penal Code. Relevant portion of the earlier order passed in Cr. Misc. No. 31928 of 2012 and its analogous case is as follows:-

“It is submitted that subsequent to lodging of the case they have been released on police bail. In that view, the anticipatory bail applications of the petitioners are not maintainable. Let the learned court below consider regular bail of the petitioners in view of the ratio laid down in the case of Mahendra Prasad Singh Vs. The State of Bihar reported in 2004(3) P.L.J.R. 491 if the petitioners surrender within a period of six weeks from the date of receipt of copy of this order in connection with Chakmehsi P.S. Case No. 07 of 2012 pending in the court of the learned C.J.M. Samastipur.

With this observation, the applications are disposed off.”

3. Through the present applications under consideration, modification of the order dated 26.11.2012 has been sought for, on the ground that on the basis of wrong instruction, it was earlier submitted that the petitioners were on police bail rather S.I., Chakmehsi Police Station issued notice on 08.08.2012 under Section 41A of the Cr.P.C., and in compliance of the same the petitioners appeared before the police and gave certain undertaking to the police. Hence, it cannot be treated as police bail. More over, they have never violated the conditions of notice nor any complaint to that effect has ever been made before the Magistrate by the police. Hence, prayer has been made to modify earlier order to the extent of consideration of anticipatory bail and to extend the period of surrender.

4. The legal issue that arises in the present case is whether an application for anticipatory bail under Section 438 Cr.P.C. is maintainable on behalf of a person who has never been arrested but has been noticed by the police officer under Section 41A (1) and has undertaken to comply with the terms of the notice under Section 41A(2) of the Cr.P.C.

5. The issue needs to be urgently addressed in view of the increasing tendency among the Sessions Courts of declining to entertain anticipatory bail applications under Section 438 Cr.P.C. on the ground that if any person who has been noticed under Section 41(A)(1) of the Code and/or has undertaken to comply with the terms of notice under Section 41A(2) Cr.P.C. would be deemed to be in police custody and hence, on police bail and precluding them from invoking the jurisdiction under Section 438 Cr.P.C.

6. For deciding the issue in question, the meaning of words “arrest”, “custody” and “bail” which are not defined in Cr.P.C., have to be understood.

7. The word ‘arrest’ has neither been defined in Cr.P.C. nor in the I.P.C. and has been derived from the French word ‘Arrester’ meaning ‘to stop or stay’ and signifies a restraint of the person. Lexicologically, the meaning of the word ‘arrest’ is given in various dictionaries depending upon the circumstances in which the said expression is used. The word arrest when used in its ordinary and natural sense, means the apprehension or restraint or the deprivation of one’s personal liberty. When used in the legal sense in connection with criminal offences, an ‘arrest’ consists in the taking into custody of another person under authority empowered by law, for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offence. ‘Arrest’ has been defined in Black’s Law Disction