Anticipatory bail under Section 438 of the Code of Criminal Procedure is only available when there is a genuine apprehension of arrest, which is not the case when the trial court has issued summons for appearance.

The petitioner has moved this application for the grant of an ticipatory bail on the allegations that the trial Court by its order dated 21st Septem ber, 1996 has summoned the petitioner for 30th September, 1996 for being charged for offences which are non-bailable. The con tention of Mr. Sibal, Sr. Advocate, appear ing on behalf of the petitioner, is that under Section 438 of the Code of Criminal Proce dure, in the event of apprehension of arrest by a person in relation to a non-bailable offence, he may move an application to the Court of Sessions or the High Court For being admitted to bail. He has referred to a full Bench judgment of the Andhra Pradesh High Court reported as Smt. Sheik Khasim Bi v. The State, 1986 Criminal Law Journal 1303. It has been held by the Andhra Pradesh High Court in that case that when non-bailable warrants have been issued by the court, it is open for the person to whom such warrants have been issued to move for anticipatory bail to the Court of Sessions or the High Court Under Section 438 of the Code of Criminal Procedure. He has also referred to a judgment of this court reported a & Shri Lal Krishan Advani v. The State, 1996 (1) AD (Delhi) 907 which has relied upon the Full Bench judgment of the Andhra Pradesh High Court and had admitted the petitioner to bail in that case. The CBI in that case had conceded the grant of bail to the petitioner. Still by another judgment passed by this Court in Cr. M. (M ). 1305/96, anticipatory bail was granted to the accused after non-bailable warrants for arrest were issued by the trial Court.

2. Mr. Sibal contends that since the offence is non-bailable the petitioner, im mediately on appearance before the trial Court, will be arrested and he will have to make an application under Section 437 of the Code thereafter for being admitted to bail and as the petitioner will be arrested on his appearance in the trial Court, provisions of Section 438 squarely apply in this case.

3. In my opinion, the contention of Mr. Sibal that even in a case where summons have been issued by the trial Court for ap pearance, the petitioner is entitled to move this court for anticipatory bail is not correct. It is only in the case of non-bailable warrants having been issued and in the case of ap prehension by the accused to be arrested before he appears in the Court, which has issued the non- bailable warrants, that there is an apprehension of arrest of the accused. In the present case, in my opinion, there is no apprehension of arrest of the petitioner till the time he appears in the trial Court.

4. The view I am taking is supported by the judgment of the Supreme Court reported as Salauddin Ahdulsaniad Shaikh v. State of Maharashtra, 1996 (1) SCC 667, wherein it has been held that:

"under Section 438 of the Code of Criminal Procedure when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, the High Court for the Court of Session may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail and in passing that order, it may include such conditions having regard to the facts of the particular

case, as it may deem appropriate. An ticipatory bail is granted in anticipation of arrest in non- bailable cases, but that does not mean that the regular court, which is to try the offender, is sought to be passed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bailand on the date of its expiry directed the petitioner to move the regular court for bail. That is the correct procedure to follow because it must be realised that when the Court of Session or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature of evidence against the alleged offender. It is, therefore, necessary that such an ticipatory bail orders should be of a li