TMI Blog1979 (7) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... ads as follows: Section 438 Direction for grant of bail to person apprehending arrest. (1) 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 the Court of Sessions for a direction under this section, and that Court may, if it thinks fit direct that in the event of such arrest, he shall be released on bail. (2) When the High Court or the Court of Session makes a direction under Sub-section (1) it may include such condition in such directions in the light of the facts of the particular case as it may think fit including- (i) a condition that the person shall make himself available (or interrogation by a police officer as and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 438 CrPC even before he is arrested, provided the person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence. The phrase 'reason to believe' occurring in this section is much stronger than the phrase 'reason to suspect'. It is not identical even with the expression 'knowledge'. A person can be held to have reason to believe a thing if he has sufficient cause to believe that thing but not otherwise. A person cannot be said to have reason to believe a thing unless there are such circumstances that any reasonable man will consider certain facts to be probable. Mere ground for suspicion that the thing exists is not equivalent to sufficient cause to believe a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce he shall be released on bail provided he is prepared to furnish bail either at the time of arrest or at any time while in the custody of such officer. It further provides that if a Magistrate taking cognizance of a non-bailable offence decides that a warrant of arrest should issue in the first instance against such person he shall issue a bailable warrant in compliance with the direction of the Court under Sub-section (1) of Section 438 Cr.P.C. The provisions of Sub-section (3) of Section 438 Cr.P.C. cannot be construed to mean that no order for anticipatory bail to a person can be passed by the High Court or the Court of Sessions under Sub-section (1) thereof if a Magistrate has taken cognizance of a nonbailable offence against such per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -section (1) of Section 438 by way of an illustration. In D.B. Criminal Reference No. 29 of 1976 Ghanshyam v. State of Rajasthan reported in Rajasthan Criminal Cases 1977 page 19, the Division Bench of this Court also made the following observations which lend support to some extent to the view taken by us: If a person who moves an application under Section 438 has reason to believe that he is going to be arrested for a cause for which, he thinks there is no foundation then the protection extended to him under the said provision cannot be withdrawn simply because a warrant has been procured against him from a competent court for his arrest or an entry has been made under Section 55(1) for his arrest. A careful perusal of the Orissa an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... genuinely believes that he is likely to be arrested shall have no remedy and shall have to submit to custody and remain in prison for some days and then to apply for bail. Section 438 CrPC can be invoked even when the arrest of a person is certain in execution of a warrant of arrest issued by a Magistrate after taking cognizance of a nonbailable offence against him. The expression take cognizance of an offence simply means that taking notice of an offence by a Court, competent for the purpose in a judicial capacity with a view to the initiation of judicial proceedings against the accused in respect of that offence after applying its mind to the facts constituting the offence It does not affect the powers of the Court to grant or refuse ba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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