K.D. SHARMA, J—The following question has been referred to us for decision by a learned single Judge of this Court:—

"Whether it is open to an accused person to apply for bail under sec. 438 Cr.P.C. in a case where the Magistrate has taken cognizance of the offence and has passed order for the issue of warrant for the arrest of the accused person?"

Before dealing with this question we would like to determine the true scope of sec. 438 Cr.P.C., Sec. 438 Cr.P.C. reads as follows:—

"S. 438 Direction for grant of bail to person apprehending arrest.

(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section, and that Court may, if it thinks fit direct that in the event of such arrest, he shall be released on bail.

(2) When the High Court or the Court of Session makes a direction under sub-sec. (1) it may include such condition in such directions in the light of the facts of the particular case as it may think fit including—

(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

(ii) a condition that the person 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 or to any Police Officer;

(iii) a condition that the person shall not leave India without the previous permission of the Court,

(iv ) such other condition as may be imposed under sub-section (3) of section 437 as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a Police Station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1)."

It will not be out of place to mention that prior to the coming into force of the new Code of Criminal Procedure, 1973 there was a divergence of judicial opinion about the power of the Court to grant bail to a person who has not been arrested and who has not surrendered to any custody under an order of arrest. But after the enforcement of the new Code of Criminal Procedure a direction to release a person on bail can be issued by the High Court or the Court of Session on his application under sec. 438 Cr.P.C. even before he is arrested, provided the person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence. The phrase reason to believe occurring in this section is much stronger than the phrase reason to suspect. It is not identical even with the expression knowledge. A person can be held to have reason to believe a thing if he has sufficient cause to believe that thing but not otherwise. A person cannot be said to have reason to believe a thing unless there are such circumstances that any reasonable man will consider certain facts to be probable. Mere ground for suspicion that the thing exists is not equivalent to sufficient cause to believe a certain thing. Therefore, all that sec. 438 Cr.P.C. requires is that the circumstances must be such that an ordinarily prudent man would have considered his arrest to be probable upon an accusation of having committed a non-bailable offence irrespective of the fact whether an accusation is likely to be made or it has already been made against him.

2. The next pertinent question that arises for consideration is whether sub-sec. (1) of sec. 438 Cr.P.C. is controlled by the provisions of sub-sec. (3) of this section and no order for anticipatory bail to a person apprehending arrest can be made by the Hi

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