The court clarified the nature of directions under Sec.438 of the Cr.P.C. and the consequences of such directions, emphasizing the importance of exercising discretion by the police officer before effecting an arrest and the jurisdictional competence of the superior courts to limit the period of an order of anticipatory bail in the interests of justice.

Serious questions concerning the nature of directions which a court under Sec.438 of the Cr.P.C. can and should issue and the consequences which follow the issue o such directions are raised in this Crl.M.C.

2. Facts are simple; but strange. The petitioner now faces allegations, inter alia, under Secs.452, 324 and 308 of the IPC. The FIR was registered on 4/4/05. In the FIR, it is alleged by the de facto complainant that two named individuals, the brothers of is daughter-in-law had allegedly committed the offences punishable under Secs.452, 324 and 308 read with Sec.34 of the IPC against him. Prior animosity on account of family disputes is the alleged motive. In the course of investigation in that crime, the Investigating Officer appears to have sailed to the conclusion that not those two persons, but the petitioner herein – a neighbour, had allegedly committed the offence. Contrary to the earlier specific allegation in the FIR, it was alleged that a masked individual had allegedly inflicted the injuries including grievous injury on the de facto complainant. An allegation was raised that the petitioner was the said miscreant. According to the petitioner, the said allegation is totally false. The relatives having settled the disputes and the offences alleged being non-compoundable, the de facto complainant was only attempting and the police was only obliging the de facto complainant to absolve the relatives from the trauma of criminal prosecution. In that attempt, false allegations were raised against the petitioner, it is contended by the petitioner.

3. The petitioner, in these circumstances, came to this Court with B.A.No.2503/05 for issue of directions under Sec.438 of the Cr.P.C. The petition was heard and allowed by another Bench of this Court. I think it necessary to extract the entire order dated 28/04/05 passed by my learned Brother which reads as follows:

“In this petition filed under Sec. 438 Cr.P.C. the petitioner who is the accused in Crime No.158/05 of Koratty Police Station for offences punishable under Sections 452, 324 and 308 IPC seeks anticipatory bail.

2. Heard the learned Public Prosecutor and also perused the case diary file from which I am convinced that this is a case in which the petitioner has reasonable apprehension of arrest within the meaning of Sec.438 Cr.P.C.

“3. Accordingly, a direction is issued to the Sub Inspector of Police, Koratty Police Station, to release the petitioner on bail for a period of one month in the event of his arrest in connection with the above crime on the petitioner executing a bond for Rs.10,000/- with two solvent sureties each for the like amount to the satisfaction of the Sub Inspector of Police, Koratty Police Station, and subject to the following conditions:-

i. The petitioner shall make himself available for interrogation as and when required by the police.

ii. The petitioner shall no influence or intimidate the prosecution witnesses.

iii. The petitioner shall not commit any offence while on bail.”

(Emphasis supplied)

4. Within a period of one month the petitioner appeared before the police, was arrested and released on bail in terms of the order. Investigation continued. The final report has now been filed. Allegations have been made in the final report that the petitioner has committed the offences punishable under Secs.453, 324 and 308 of the IPC. Cognizance has already been taken, it is submitted.

5. The petitioner did not seek regular bail under Sec.437/439 of the Cr.P.C. The charge sheet having been filed, the petitioner now wants to appear before the learned Magistrate. The petitioner was threatened by the Investigating Officer that he, having not obtained regular bail under Sec.437/439 of the Cr.P.C. within a period of one month, shall now be arrested. He also apprehends that the learned Magistrate may issue non-bailable warrant of arrest to procure the presence of the petitioner. His further apprehension is that notwithstanding the grant of anticipatory bail