The power to grant anticipatory bail under Section 438 CrPC is wide and is not subject to any conditions or restrictions imposed by the legislature. The apprehension of arrest is a necessary condition for granting anticipatory bail under Section 438 CrPC.

Mohd. Shamim,j. (Oral)

( 1 ) A learned Single Judge of this Court was of the view while deciding Crl. M. (M) No 2341/96, entitled P. V. Narasimharao v. State (CBI), on September 26,1996 that an application for anticipatory bail in a case where summons only have been issued would not be maintainable as, according to him, there was no apprehension of arrest in such a case. However, when another petition being Crl. M. (M) No. 2733/96 entitled P. V. Narasimharao v. State (CBI) came up for hearing the learned counsel for the petitioner referred to the observations of Punjab and Haryana High Court in Puran Singh v. Ajit Singh, reported as 1985 Crl. L. J. 897, to the following effect:

"the grant of bail under Section 438 (1) by the High Court or the Court of Session is, to my mind, dependent on the merits of a particular case and not the order of the Magistrate choosing to summon an accused through bailable or non bailable warrant. "

( 2 ) THE learned counsel thus on the basis of the above contended before the learned Single Judge that an application for anticipatory bail was maintainable even in a case where only summons have been issued for the appearance of the accused before the Court. In view of the divergence of the view in between the learned Single Judge of this Court and that of Punjab and Haryana High Court, the learned Single Judge requested the Hon ble Chief Justice to constitute a larger Bench to consider the above point. It was in the above circumstances that this case came up for hearing before this Bench.

( 3 ) IT is manifest from above that the only short point which arises for adjudication before this Bench is as to whether an applicaion for grant of anticipatory bail under Section 438 of the Code of Criminal Procedure ( "cr. P. C. " for short) would be maintainable even in a case where the Court has chosen to issue summons only for the appearance of the accused?

( 4 ) LEARNED counsel for the petitioner Mr. R. K. Anand and Mr. P. P. Malhotra, Senior Advocates, have contended with great zeal and fervour that the legislators in their wisdom have conferred very wide powers while drafting Section 438 Criminal Procedure Code. on the Courts to enlarge accused persons on bail in anticipation of their arrest. The only condition precedent according to the learned counsel, is (a) that there must be an apprehension of arrest and (b) an accusation levelled against the accused with regard to the commission of a non bailable offence. If the said two things are shown the Court need not look any further and the Court would be competent enough to grant the bail in such cases and under such circumstances. Consequently, competence and the powers of the Court cannot be narrowed down by reading into the said Section, restrictions and fetters on the powers of the Court which are not there. Hence the Court can grant anticipatory bail if the above two ingredients are shown even in cases where summonses have been issued since the power of the Court is not dependent upon the mode wherethrough an accused is asked to appear. It can be through a warrant, bailable or non bailable. It can be also through a summons.

( 5 ) THE learned Public Prosecutor, Mr. Dutt, on the other hand, has argued that in cases where the Court in his wisdom has chosen to issue only the summonses for the appearance of the accused then there is absolutely no apprehension for the arrest of the accused. Hence an application under Section 438 Criminal Procedure Code. would not be maintainable. According to the learned Public Prosecutor to invoke the jurisdiction of the Court under Section 438 Criminal Procedure Code. the party approaching the Court must show that there is in fact an apprehension of his being arrested.

( 6 ) SINCE we are concerned with the construction of Section 438 Criminal Procedure Code. it would be just and proper to examine the provisions of the said Section before proceeding any further in the matter. Section 438 Criminal Procedure Code. is in the followin

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