Anticipatory bail under Section 438 of the Criminal Procedure Code, 1973, is a discretionary power that should be exercised cautiously and only in exceptional cases involving non-bailable offenses, considering factors such as the nature of the accusation, evidence, severity of punishment, character of the accused, likelihood of absconding, danger of continued offense, witness tampering, public interest, and ulterior motives of the police.

JUDGEMENT

Mohanti, J. :- The petitioners who are goldsmiths of Puri town are being prosecuted for offences under Sections 147, 353, 341, 225 and 414, Indian Penal Code. They pray for anticipatory bail which is opposed by the learned Standing Counsel for the State. The matter has come up before us on a reference made by our learned brother Panda, J.

2. The petitioners aver that on the allegations that when the police officers had gone to search the shop of one Dhruba Charan Sahu of Puri town and were making enquiries at another shop, Dhruha Charan Sahu was found slipping away with a bag suspected to contain stolen articles. The police officials rushed to the shop of Dhruba Charan Sahu and asked him to show the bag. Upon his refusal and raising hulla, about 100 people including the petitioners gathered at the place and it is alleged that the said persons prevented the police from discharging their duties. During the commotion, it is alleged, Dhruba Charan Sahu passed on the bag to some other person and it could not be seized. On the aforesaid allegations G. R. Case No. 441 of 1975 has been started in the court of the Sub-divisional Judicial Magistrate, Puri for commission of offences under Sections 147, 353, 341, 225 and 474, I.P.C. The offence under Section 414, I.P.C. is non-bailable, Petitioners contend that the said Dhruba Charan Sahu was mercilessly assaulted by the police for which a complaint case has been filed. They apprehend that they will be arrested and by such arrest they will be humiliated and harassed by the police. They moved the learned Sessions Judge of Puri for grant of anticipatory bail, but he rejected the prayer by order dated 8-4-1975.

3. The question referred to us is : What are the guidelines in consideration of which anticipatory bail should be granted ?

4. The concept of 'bail' means release of a person from custody or prison and delivery into the hands of sureties who undertakes to produce him in court upon an appointed day. Wharton's Law Lexicon explains 'bail' as "to set at liberty a person arrested or imprisoned, on security being taken for his appearance". Therefore, the concept of bail implies on arrest or a previous restraint. 'Anticipatory bail' means bail in anticipation of arrest. 'Arrest' consists of the actual seizure or touching of a person's body with a view to his detention. (Vide Halsbury's Laws of England, Third Edition, Volume X, Page 342).

5. Prior to the enforcement of the Code of Criminal Procedure, 1973 there was a conflict of judicial opinion about the power of the court to grant anticipatory bail. The consensus of judicial opinion was in favour of the view that bail cannot be granted to a person who has not been arrested and who has not surrendered to any custody under an order of arrest. It is unnecessary to discuss those authorities. The Parliament has now conferred on the High Court and the court of Session a wholly new and independent power for granting anticipatory bail. The relevant provisions of the Criminal P.C. 1973 are quoted below :

"Section 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-billable 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-Section (1), it may include such conditions 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