1. - Following Meaningful questions related to Section 438 of Code of Criminal Procedure, 1973 (for short `Cr.P.C.') arise for consideration in the instant Misc. Petition :

i. What is the duration of anticipatory bail order? Whether filing of charge-sheet can circumvent the benefit conferred by Section 438 Cr.P.C.?

ii. Whether anticipatory bail granted u/s. 438 continues to be in operation until conclusion of trial?

iii. Whether the accused, who had already furnished bail bonds before the Police Officer u/s. 438(3) can still be asked by Magistrate to furnish fresh bonds at the time of filing the charge-sheet?

iv. In what manner a Magistrate should proceed in a case triable exclusively by Court of Session wherein anticipatory bail is granted with a condition that the order shall remain in force till the expiry of some days after the charge-sheet is filed?

2. Contextual facts depict that a case u/ss. 363 & 366 IPC bearing FIR No. 278/2003 was registered against the petitioner at Police Station Bayana (Bharatpur). Apprehending arrest the petitioner approached this Court by filing application (S.B. Criminal Misc. Bail Application No. 4194/2003) u/s. 438 Cr.P.C. While allowing the application on 14.10.2003, this Court directed the SHO Police Station Bayana that in the event of arrest the petitioner shall be released on bail on furnishing a personal bond in the sum of Rs. 5,000/- with one sound surety in the like amount on the following conditions:-

i. that the petitioner shall make himself available for interrogation by a Police Officer as and when required;

ii. that the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court of any Police Officer;

iii. that the petitioner shall not leave India without previous permission of the Court; and

iv. This order shall remain in force till the expiry of 15 days after the charge-sheet is filed.

3. After releasing the petitioner on bail and conclusion of investigation, the SHO concerned filed the charge-sheet in the Court of learned Additional Chief Judicial Magistrate Bayana (for short `ACJM') for the offences u/ss. 363 & 366 IPC on 10.11.2003. The petitioner who was present in the Court, was required to file fresh bail bonds. On furnishing the bail bonds learned ACJM released the petitioner on bail for a limited period of 15 days pursuant to the directions of the High Court issued in its order dated 14.10.2003. As the case was exclusively triable by Court of Session, learned ACJM posted it for 24.11.2003 to initiate committal proceedings. Application seeking exemption from personal appearance filed on behalf of the petitioner was taken up and rejected on 15.12.2003 and learned ACJM issued bailable warrant. Being aggrieved with the order, the petitioner filed application seeking bail u/s. 439 Cr.P.C. in the Court of learned Additional Sessions Judge No. 1 Bayana. Dismissing the application vide order dated 21.11.2003, learned Additional Sessions Judge, observed that without filing bail application u/s. 437 Cr.P.C., provisions u/s. 439 Cr.P.C. could not be invoked. In such a situation, the petitioner has filed this petition u/s. 482 Cr.P.C. seeking appropriate directions in the matter.

4. The provision of anticipatory bail was introduced for the first time in the Code of Criminal Procedure, 1973. Under the old Code of 1898 there was no such provision. There were conflicting decisions of the High Courts. Some of the High Courts took the view that bail could be granted to a person against whom a report of an offence was made even though he was neither arrested nor detained and even in a case where a person was suspected of an offence for which he might be arrested by a Police Officer but the majority of the High Courts held that not to speak of Sessions Judge even High Court did not have inherent power to grant anticipatory bail by invoking Section 561-A of