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2019 (12) TMI 241 - HC - Money LaunderingIssuance of notice prior to arrest - Grant of anticipatory Bail on certain terms - while disposing of the application for anticipatory bail has passed the direction that the petitioner agency shall serve three working days notice, on proposing to arrest the petitioner in this case - whether the Court has power to direct the Investigating Agency to issue notice prior to arrest? HELD THAT:- The terms ‘arrest’ is neither defined in the Code of Criminal Procedure, 1973 nor in the Indian Penal Code, 1960 nor there is any enactment dealing with offences demanding arrest. The word ‘arrest’ is derived from a French word ‘ARRATER’. It means to stop, to restrain a person. ‘Arrest’ is thus restraining of a person, obliging him to be obedient to law. Anticipatory bail being an extraordinary remedy available in special cases, this power has been conferred on the higher echelons of judicial service, namely, the Court of Sessions or the High Court. Keeping in view the reports of the Law Commission, Section 438 was inserted in the present Code. Sub-section (1) of Section 438 enacts that when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or to the Court of Session for a direction that in the event of his arrest he shall be released on bail, and the Court may, if it thinks fit, direct that in the event of such arrest he shall be released on bail - Sub Section (2) of 438 lays down that when the High Court or the Court of Sessions makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit. Sub Section (3) of 438 lays down that if such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub- section (1). The ratio of judgment of the Hon’ble Supreme Court in the case of PN Aggarwal [2008 (10) TMI 1 - SUPREME COURT] that the Court has power to grant or not to grant anticipatory bail. But the court has no power to direct the IO to issue notice prior to arrest. The impugned order dated 13.04.2017 passed by the ASJ is hereby set aside - Petition allowed.
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