U.L. Bhat, C.J. -- 1. This is an application filed by the accused Surendra Kumar in Crime No. 284 of 1993 of Police Station, Sihora, District Jabalpur for grant of anticipatory bail under section 438 of Code of Criminal Procedure 1973. The application was opposed by the learned Government Advocate.

2. Learned Judge before whom bail matter came up for consideration at an earlier stage passed an order restraining the petitioner's arrest. One of us who had occasion to deal with the case at a later stage doubted the legality of the interim order restraining the arrest and referred the matter to Division Bench.

3. The petitioner married Mst. Sarojabai. On 25.5.1993, she sustained burn injuries and was taken to the hospital. Police was given information and parents were also informed. A case was registered against the petitioner for offences under section 306 and section 201 of the Indian Penal Code. This Court granted him anticipatory bail. Mst. Saroja bai succumbed to the injuries on 3.6.1993. The case was subsequently converted into one involving offence under section 302 I.P.C. also. This led to the filing of the present application. The Court ordered notice and called for the records and pending consideration of the application restrained the petitioner's arrest.

4. The direction which a Court can issue under section 438 of the Code is that in the event of arrest of an accused on an accusation of comitting a non-bailable offence, he shall be released on bail subject to such conditions as the Court may deem fit to impose. An application under section 438 of the Code can be moved only by a person who has not already been arrested. Once he is arrested, his remedy is to move the Court either under section 437 or section 439 of the Code. In the very nature of the direction which the Court can issue under section 438 of the Code, it is clear that the direction is to be issued only at the pre-arrest stage. The direction becomes operative only after arrest. The Court in issuing the direction exercises its jurisdiction to protect him from the consequence of arrest leading to custody. The condition precedent for the operation of the direction issued is arrest of the accused. That being so, the irresistible inference is that in an application under section 438 of the Code, the Court cannot restrain arrest.

5. Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance, and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance, to maintain law and order in the locality. For these or other reasons, arrest may become inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under section 438 of the Code. The role of the investigator is well-defined and the jurisdictional scope of interference by the Court in the process of investigation is limited. The Court ordinarily will not interfere with the investigation of a crime or with the arrest of accused in a cognizable offence. This is not because of lack of power in the Court since such a power exists under Art. 226 of the Constitution of India; but because of the reluctance of the Court to interfere at that stage (See State of Haryana and others v. Bhajan Lal and others - AIR 1992 SC 604, and Janata Dal v. H.S. Chowdhary - AIR 1993 SC 892). An interim order restraining arrest, which cannot be passed under section 438 of the Code, will amount to interference in the investigation, which cannot, at any rate, be done under section 438 of t