TMI Blog2019 (12) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside and is hereby set aside. 4. Further, submitted that said judgment has been followed by the Supreme Court consistently and more recently in the case of State of Telangana vs. Habib Abdulla Jeelani (2017) 2SCC 779 The Supreme Court has reiterated the law that while exercising power under Section 438, the courts while disposing of the application cannot pass an order which would amount to the grant of anticipatory bail despite the principles of Section 438 Cr.P.C. not being followed. It is the settled law that the courts while exercising power under Section 438 of Cr.P.C. are governed by the provisions thereof and do not have any inherent power to pass order such as passed in the present case. The limited power available to the Courts exercising power under Section 438 of the Cr.P.C. is to either grant or reject anticipatory bail. The courts are not empowered to travel beyond the dicta of the statute and pass directions not provided under the Act. 5. Learned counsel further submits that the present case relates to a scam involving approximately ₹ 3600 crores and is commonly known as Bank of Baroda Scam. During the course of investigation, variou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned. 11. As per Section 42 Cr.P.C., when any person who, in the presence of a police officer, has committed or has been accused of committing a non- cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained. 12. According to Section 43 Cr.P.C. any private person may arrest or cause to be arrested any person who in his presence commits a non- bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station 13. Section 44 Cr.P.C. stipulates that when any offence is committed in the presence of a Magistrate, whether Executive or Judicial, within his local j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion about the power of a Court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to' implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail. 497A. (1) When any person has a reasonable apprehension that he would be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section. That Court may, in its discretion, direct that in the event of his arrest, he shall be released on bail . 16. The following draft of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, para 31] 18. 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. 19. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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