1. Petitioners challenge the legality of the order passed by a Sessions Court in an application filed under Section 438 Cr. P.C. though it was disposed of in their favour, which appears to be very strange. Is the remedy worse than the disease? Even a cursory look at the order will not leave one astonished at the petitioners assailing the order. They are accused of having committed the offences under Sections 323 and 354B IPC. The facts of the case are not relevant for the present purpose as I have already passed an interim order.

2. By the impugned order the learned Sessions Judge directed the petitioners to surrender before the investigating officer within 10 days. Some of the other directions which contain certain declarations of law also are as follows:-

"On their surrender, as a non-bailable offence is alleged, in case, the Investigating Officer effects their arrest, they shall be released on bail by the Investigating Officer himself on executing bond for Rs. 1,00,000/- (Rupees One lakh only) each with two solvent sureties each for the like sum for the purpose of securing their presence for interrogation, if it is required."

"On completion of the interrogation (which may or may not be completed win in 24 hours) they shall be produced before the Judicial Magistrate concerned, who shall dispose of the regular bail application, if any, filed on their behalf without any delay."

"The Investigating Officer has no authority to grant bail in a non-bailable offence and it is the prerogative of the Judicial Magistrate alone."

3. The observation of the learned Sessions Judge that as a non-bailable offence is alleged the petitioners shall be released on bail if the investigating officer effects their arrest on their surrender before him is meaningless for the simple reason that an application under Section 438 Cr. P.C. is maintainable only if the petitioner is alleged to have committed a non-bailable offence.

4. In Balchand Jain vs. State of Madhya Pradesh, AIR 1977 SC 366 the Supreme Court has said that the expression anticipatory bail is really a misnomer because what Section 438 Cr. P.C. contemplates is not an anticipatory bail but merely an order directing release of an accused in the event of his arrest. The order becomes effective only when the investigating officer effects the arrest of the petitioner. Manifestly, there is no question of release on bail unless a person is arrested, and therefore it is only on arrest that the order granting anticipatory bail becomes operative, the Supreme Court has observed where there is no arrest, the order shall remain without life. An order which can become effective before the petitioner is arrested or even if he is not arrested does not conform to the idea contained in Section 438 of the Code.

5. In his order the learned Sessions Judge has directed the petitioners to surrender before the investigating officer within 10 days from the date of the order. I do not find any provision in the Code empowering the court to direct the petitioner in an application under Section 438 of the Code to surrender before the investigating officer the object of the section is not to help the accused avoid arrest. The direction to surrender militates against the concept of anticipatory bail. It makes the order operative without the petitioner being arrested. If the court allows an application under Section 438 the only direction that may be passed is the direction to the investigating officer to release the petitioner on bail if he is arrested. It is illegal for the court to direct the petitioner to surrender before the investigating officer. A fortiori, under no circumstance the court can direct the accused to surrender before the Magistrate in the course of an investigation. If the applicant is entitled to anticipatory bail, the court shall grant it, and if he is not, the court shall reject it. For still stronger reasons, when the court dismisses the application, there is no justification at all to direct the