The court can pass an interim order for anticipatory bail without giving notice to the state if it thinks it fit to do so for the ends of justice.

Khastgir, J.: In this application under section 438 of the Criminal Procedure Code, the petitioner contended that in view of the amendment that bas been incorporated to the said section by an Act of the West Bengal Legislature being West Bengal Act No. XXV of 1990 introducing the amendment to the Code of Criminal Procedure (West Bengal Amendment Act of 1988) to section 438 of the Act 2 of 1974, the Police can arrest the petitioner during the pendency of the application for the anticipatory bail in view of the intention of the legislature having been expressed in the said section to prevent a person to move freely by simply filing an application for anticipatory bail.

2. The de facto complainant in the instant case contended that the order passed by the learned District Sessions Judge on 13th November, 1992 ex parte without referring to any materials as contained in the case Diary was illegal and violative of the provisions introduced by this amendment which was mandatory in nature. The provisions of section 438 were introduced by the amendment Act of 1973, in the Original Code of 1898 there was no such provision earlier. It is only at the recommendations of and as per the 48th Report of the Law Commission, the Legislature thought it fit to make a provision under section 438 of the Criminal Procedure Code for the purpose of granting bail to persons apprehending arrest which provides as follows:

"Direction for Brant of bail to person apprehending arrest:

(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, 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) When the High Court or that Court of Sessions make a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-

(i) a condition that the person shall make himself available for interrogation by a Police Officer as and when required;

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police Officer;

(iii) a condition that the person shall not leave India without the previous permission of the Court;

(iv) Such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a Police Station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue a bailable warrant in conformity with the direction of the Court under sub-section (1)".

3. Under sub-section (1) the Court may, if it thinks fit that in the event of such arrest if the petitioner is accused of having committed a non-bailable offence, release him on bail.

4. Under sub section (2) either High Court or the Court of Session may include such conditions and/or such directions in the light of the facts of the particular case as the Court may think necessary including conditions as set out in (i), (ii), (iii) (iv) under sub-section(2) of section 438.

5. Such section was introduced in the Criminal Procedure Code at the recommendations of the Law Commission taking into consideration inter alia the following circumstances namely, (1) sometimes influential persons try to implicate rivals in false cases for the purpose of disgracing them or for the purpose of detaining them in jail for some days for some purpose; (2) in recent times this tendency has been showing signs of steady increase because of the po