Anticipatory Bail – After grant of interim bail, during pendency of application for regular bail, an application for anticipatory bail is not maintainable

Mr. Manoj Bajaj, J. (Oral):- Petitioner Balwant Singh @ Banta has filed the present petition under Section 438 Cr.P.C. for grant of anticipatory bail in case FIR No.102 dated 23.8.2018, under Section 22 of NDPS Act, 1985 registered at Police Station Subhanpur, District Kapurthala.

2. Learned counsel for the petitioner was confronted with the issue of maintainability of the petition under Section 438 Cr.P.C., on the ground that the petitioner had already submitted himself before the Court and had moved an application for grant of regular bail under Section 439 Cr.P.C. and the said application stands adjudicated upon vide order dated 08.1.2019.

3. Learned counsel for the petitioner contends that since the trial Court has issued the non-bailable warrants on 08.1.2019, therefore, the application under Section 438 Cr.P.C. is justified as he has apprehension of arrest pursuant to the said non-bailable warrants.

4. The submission of learned counsel for the petitioner has been considered and is found without any merit.

5. The two provisions as contained in the Code of Criminal Procedure, which govern the grant of pre-arrest bail and post arrest bail are distinct and operate in distinct spheres and that too at different stages. A petition for pre-arrest bail is maintainable if the requisite condition under Section 438 Cr.P.C. is fulfilled by the applicant. Whenever a person approaches the High Court or the Court of Sessions for issuance of a direction under Section 438 Cr.P.C. then it is incumbent for him to establish the first and foremost condition of apprehension or likelihood of his arrest on the accusation of having committed a non-bailable offence.

6. Once such an apprehension exists, the person has a valid reason to approach the competent Court for grant of pre-arrest bail but in case a person is already in custody, the provisions of Section 438 Cr.P.C. has no application.

7. On the contrary, the provisions governing the concession of regular bail (post arrest) are enshrined in Sections 437 and 439 Cr.P.C.. Section 437 Cr.P.C. confers power upon the Court other than the High Court or the Court of Sessions to grant bail where a person is brought before it, who being an accused or suspected of the commission of any nonbailable offence. It is further required that the said person/accused stands arrested or is under detention. Section 439 Cr.P.C. confers the special powers for grant of regular bail upon the High Court or the Court of Sessions. One of the essentials to seek the benefit of regular bail is that the person applying for bail is in custody.

8. It is absolutely clear that these provisions are not over-lapping as they are meant for different purposes and this distinction already stands noticed by Hon’ble Supreme Court in Gurbaksh Singh Sibbia etc. vs. The State of Punjab, 1980 AIR (SC) 1632, the Larger Bench of Hon’ble Supreme Court has held as under :-

“Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has “reason to believe” that he may be arrested for a non-bailable offence. The use of the expression “reason to believe” shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere ‘fear’ is not ‘belief’, for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non- bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested. Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of ap