The main legal point established is that the applicant's apprehension of arrest was valid, and the court emphasized the importance of considering applications for bail on merits, regardless of the accused's custody status.

ORDER : – This is first application under section 438 of the Code of Criminal Procedure for grant of anticipatory bail. Applicant is apprehending his arrest in connection with Crime No. 247/2022, registered at Police Station-Silwani, District-Raisen, (M. P.) for offences punishable under sections 294, 323, 354 and 506 of Indian Penal Code.

2. Learned counsel appearing for the applicant submitted that applicant was issued notice under section 41-A, Criminal Procedure Code by Police Station Silwani. He co-operated in investigation of case and after completion of investigation, notices were issued to applicant to remain present before the Court for filing of charge-sheet. Counsel for applicant submitted that trial Courts are not considering application for bail under section 439 of Code of Criminal Procedure on ground that applicants are not in police custody and in many cases, trial Courts are sending accused persons in jail. Learned counsel appearing for the applicant relied on Apex Court judgment reported in (2022) 1 SCC 676, Siddharth vs. State of U. P. and another. Para 5 of this judgment is quoted as under : –

“5. In High Court of Delhi vs. CBI, the Delhi High Court dealt with an argument similar to the contention of the respondent that section 170 Criminal Procedure Code prevents the trial Court from taking a charge-sheet on record unless the accused is taken into custody. The relevant extracts are as under :

“15. Word “custody” appearing in this section does not contemplate either police or judicial custody. It merely connotes the presentation of accused by the Investigating Officer before the Court at the time of filing of the charge-sheet whereafter the role of the Court starts. Had it not been so the Investigating Officer would not have been vested with powers to release a person on bail in a bailable offence after finding that there was sufficient evidence to put the accused on trial and it would have been obligatory upon him to produce such an accused in custody before the Magistrate for being released on bail by the Court.

16. In case the police/Investigating Officer thinks it unnecessary to present the accused in custody for the reason that the accused would neither abscond nor would disobey the summons as he has been co-operating in investigation and investigation can be completed without arresting him, the IO is not obliged to produce such an accused in custody. * * *

19. It appears that the learned Special Judge was labouring under a misconception that in every non-bailable and cognizable offence the police is required to invariably arrest a person, even if it is not essential for the purpose of investigation.

20. Rather the law is otherwise. In normal and ordinary course the police should always avoid arresting a person and sending him to jail, if it is possible for the police to complete the investigation without his arrest and if every kind of co-operation is provided by the accused to the Investigating Officer in completing the investigation. It is only in cases of utmost necessity, where the investigation cannot be completed without arresting the person, for instance, a person may be required for recovery of incriminating articles or weapon of offence or for eliciting some information or clue as to his accomplices or any circumstantial evidence, that his arrest may be necessary. Such an arrest may also be necessary if the Investigating Officer concerned or Officer-in-charge of the Police Station thinks that presence of the accused will be difficult to procure because of grave and serious nature of crime as the possibility of his absconding or disobeying the process or fleeing from justice cannot be ruled out.”

3. It is submitted that applicant filed application for grant of anticipatory bail because applicant was under apprehension that as per prevalent practice, applicant’s application under section 439, Criminal Procedure Code may be rejected as he is not in custody and he may be sent to jail. In these ci