Anticipatory bail can only be sought against existing accusations of non-bailable offences, and not against possible future accusations. The provision is not intended to provide blanket protection and must be specific to the accusations.

A simple but interesting question of importance is projected in this petition. The point for decision is whether the assistance of the Court by way of an order under S. 438 of the Criminal P.C. could be sought against an anticipated arrest on a possible accusation of a non-bailable offence resulting from some action which the petitioners are intending to do believing it to be legal.

2. 29 cents of land in R.S. No. 27/2 of Panoor Village is claimed both by the first petitioner and one Manni. Both claim title and possession. First petitioner lays claim on the basis of a registered assignment deed dated 28-7-1984 and Manni claims by document No. 15 of 1963. Second petitioner is the climber who is intended to be engaged by the first petitioner for plucking coconuts from the property. For having trespassed into the said property and plucked coconuts Crime No. 31 of 1985 was registered against the first petitioner and he is on bail. On the strength of his alleged title and possession he wants to enter the property again to pluck coconuts engaging the second petitioner. He fears that the same may result in another crime involving non-bailable offences against him and the second petitioner and their consequent arrest. It is against this that the petitioner seek a direction under S. 438.

3. The Public Prosecutor representing the State pointed out that title and possession are with Manni and the first petitioner was only attempting to take law into his hands. It is not the province of this Court while exercising jurisdiction under S. 438 to embark on an enquiry into the rival claims. It is for either party to choose the appropriate forum to fight out their claims if so advised. It may be true that legal presumption will be in favour of innocence until a person accused of an offence is found guilty and convicted. But that presumption may not extend to matters like title and possession over the subject matter of the offence. At any rate the process of Courts cannot be extended to afford a helping hand or to act as an insurance against something, which, though alleged to be in the purported exercise of right, is likely to be treated as an offence in the sense that it is an inroad into the rights of someone else. In other words the process of Court cannot be extended to afford protection to do something which is likely to be interpreted as commission of a crime even if the offender intends it as something in exercise of his right. Regarding the self same property an earlier attempt resulted in the registration of a crime which is now pending before a Court of law. The first petitioned could have awaited decision of the case. If he wanted an earlier adjudication of his rights he could have approached a competent civil Court or resorted to other remedies, if any, available under law. If the prayer in this petition is to be allowed this Court may have to continue such protection endlessly as and when it is sought for depending upon the continued desire of the petitioner to exercise his rights. So also if this petition is allowed that can give rise to a similar petition or petitions from the rival claimant. It is a right available to all to defend his person or property from inroads. In exercise of that right commission of offences to the extent necessary are protected also. If the present petition is allowed Manni can very well approach this Court and say that under the cover of the order the petitioners are going to encroach upon his property and he may be granted anticipatory bail against arrest in any possible accusation which is likely when he attempts to defend his person or property. That will create a situation of lawlessness. That is not the purpose or object of S. 438. The effect of such orders will be encouragement of crimes.

4. What the petitioners want is the protection of anticipatory bail anticipating ever so many contingencies. At present there is no accusation against them of having committed a non-bailable offence.