JUDGMENT

Mukta Gupta, J.

1. The Petitioner is an accused before the learned Special Judge, CBI, Rohini in complaint case No.8/2009 under Sections 120B IPC read with Sections 7 and 9 of the Prevention of Corruption Act, 1988. The allegations against the Petitioner are that he accepted illegal gratification from the journalists of tehelka.com posing as arms dealers. During the course of investigation on 21st March, 2005, Respondent No.2 herein Mr. T. Satyamurthy appeared before the learned Special Judge, CBI and prayed for anticipatory bail under Section 438 Cr.P.C. The said prayer was not opposed by the CBI and Respondent No.2 was, thus, granted the relief of anticipatory bail. On 21st April, 2005, the Respondent No.2 appeared before the learned Metropolitan Magistrate and got his statement recorded under Section 164 Cr.P.C. in the presence of the Investigating Officer. Before filing of the charge sheet on 3rd July, 2006, the CBI moved an application before the learned Special Judge, CBI seeking pardon for Respondent No.2, co-accused so as to make him a witness/approver in the case. Learned Special Judge on 17th July, 2006 allowed the said application of Respondent No.1/CBI under Section 306 Cr.P.C. after perusing the statement of Respondent No.2 recorded under Section 164 Cr.P.C.

2. The Petitioner being aggrieved by the order granting pardon approached this Court by way of a criminal revision petition No.769/2006, which was dismissed by this Court vide its order dated 30th August, 2010. The Petitioner took the matter to the Hon'ble Supreme Court by way of special leave petition. On 22nd November, 2011 Hon'ble Supreme Court dismissed the SLP of the Petitioner holding that the Special Judge was competent to grant pardon to Respondent No.2 under Section 306 Cr.P.C. The matter does not rest there. Thereafter on 16th January, 2008, the Petitioner filed an application before the learned Special Judge, CBI seeking an order in terms of Section 306 (4)(b) Cr.P.C. for taking the Respondent No.2, an approver in this case, into custody on the specific ground that he was never arrested before grant of pardon and that according to the said provision, an approver unless he is already on bail, is required to be detained in custody until termination of the trial. Vide order dated 7th April, 2011 the learned Special Judge dismissed the application of the Petitioner. This is the order impugned in the present petition.

3. Learned counsel for the Petitioner contends that the learned Special Judge fell into grave error in not exercising power under Section 306(4)(b) Cr.P.C. Respondent No.2 had been granted anticipatory bail, however, he was not arrested. According to the learned counsel, the expression "anticipatory bail" is really a misnomer as what is actually contemplated under Section 438 Cr.P.C. is an order directing the release of an accused on bail in the event of his arrest. Thus, as long as the person is not arrested, he cannot be on bail. In the present case though Respondent No.2 had been granted an order that in the event of arrest he would be released on bail, however, he was never granted bail as he was not arrested. Learned counsel contends that since Respondent No.2 is not on bail, the provision of Section 306(4)(b) Cr.P.C. comes into play. According to learned counsel, the finding of the learned Special Judge that the words "unless already on bail" are synonymous to "unless he is in custody" is erroneous.

4. According to the learned counsel, the terms "arrest" and "custody" are not interchangeable. Reliance is placed on Roshan Beevi and others v. Joint Secretary to Government of Tamil Nadu and others, 1984 CRL.L.J. 134 to contend that the person granted pardon may not necessarily be an accused. Reliance is also placed on Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420 to contend that the dominant object of requiring an approver to be detained in custody until conclusion of trial is not intended to punish the approv