The court emphasized the need for a special case to grant anticipatory bail, the exercise of discretion based on the particular facts and circumstances of the case, and the importance of not prejudicing the ongoing investigation.

The question that poses for consideration is whether this is a fit case for the grant of anticipatory bail. Anticipatory bail is granted in anticipation of arrest and it is effective at the very moment of arrest unlike ordinary bail which is granted after arrest. The prohibition in S. 437(1) that a person against whom there are reasonable grounds for believing that he is guilty of an offence punishable with death or imprisonment for life shall not be released on bail is not there is S. 438 and it cannot be read into that section also. The discretion in granting anticipatory bail is very wide. But that judicial discretion has to be exercised only if the Court of Session or the High Court considers it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant. Discretion to refuse anticipatory bail is also there if the circumstances of the case so warrant, on considerations alike those mentioned in S. 437 or which are generally considered to be relevant under S. 439. The Court is free to refuse anticipatory bail if the materials on record justify such refusal. It is true that Art. 21 of the Constitution provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. In order to meet this challenge the grounds for refusal of anticipatory bail must be fair, just and reasonable. The Court has also to see that investigation is the province of the police and an order for anticipatory bail should not operate as an inroad into the investigational powers of the police. In this connection it is relevant to note the observation of the Supreme Court in Gurbaksh Singh v. State of Punjab, AIR 1980 SC 1632: (1980 Cri LJ 1125) :

"Therefore the High Court and the Court of Session should be left free to exercise their jurisdiction under S. 438 by a wise and careful use of their discretion which, by their long training and experience, they are ideally suited to do. The ends of justice will be better served by trusting these courts to act objectively and in consonance with principles governing the grant of bail which are recognised over the years, than by divesting them of their discretion which the legislature has conferred upon them, by laying down inflexible rules of general application."

The prayer in this case will have to be considered in the background of the principles mentioned above. It has to be further borne in mind that a direction under S. 438 need be given only "if it thinks fit". The Court is required to consider the material on record against the accused. Anticipatory bail is not to be granted as a matter of course in all cases where the applicant has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence. Grant or refusal of such bail must depend upon variety of circumstances, cumulative effect of which must enter the judicial verdict. The power under the section has to be exercised sparingly and in exceptional cases using the discretion on the facts of each case. An order under S. 438 being an exceptional type there must be a special case made out for passing such an order. It should not be allowed to circumvent the normal procedure of arrest and investigation. Ulterior motives of harassment and reasonable possibility of the accused not absconding are only some of the considerations. Some little facts may be necessary in the exercise of the discretion to grant or refuse the prayer.

2. Petitioner is the Manager (under suspension) of the Ernakulam branch of the Dhanalakshmi Bank. A draft for Rs. One crore was issued purporting to be from that branch at a time when the petitioner was the manager. Petitioner and the respondent have two different versions regarding the draft and the circumstances under which it came into existence. Anyhow it is common ground that it is a spurious draft. The Bank had authority to issue draft only up to rupees nine lakhs while