JUDGMENT 1. Learned Single Judge has referred the following questions to us : Whether issue of a warrant of arrest or an order in writing for arrest under section 55 (1), Cr. P.C. 1973 would operate as a bar against an accused person to apply for bail under section 438 Cr. P. C. ? 2. In order to answer this question we shall have to take into consideration the history of the provisions contained in section 438 Cr. P.C. (1973) (hereinafter referred to as the new code). 3. Before the new code came into force, there was no provision for the grant of anticipatory bail in the old code. The legislature in its wisdom has now incorporated a provision for issuing the directions for the grant of anticipatory bail. Prior to the enforcement of the new code there was a conflict of judicial opinion about the power of a court for the grant of anticipatory bail. The consensus of the judicial opinion was that anticipatory bail could be granted to such a person who has either been arrested or a restraint of some kind has been placed on the liberty Of the than by a competent authority. The Parliament now in its wisdom, has conferred a power on the High Court and the court of Sessions Judge to issue direction under section 438 for the grant of bail even before he is actually arrested. On the recommendation of the Law Commissioner which was made in the following language : "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 several 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." 4. In order to determine the true scope of section 438 Cr. In order to determine the true scope of section 438 Cr. P. C. 1973, let us reproduce the language of the section:- "438 (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 Sessions 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 for interrogation by a police officer as and when required. (ii) a condition that the person shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer : (iii) a condition that the person shall not leave India without the previous permission of the court; (iv) such other condition as may be imposed under section (3) of section 437, as if the bail were granted under that section ; (3) If such person is thereafter arrested with out warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest of at any time while in the custody of such officer to give bail, he shall be released on bail, and if a magistrate taking cognisance 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)." 5. The concept of 'bail' as is commonly understood in criminal law is that the bail can be granted by the court only when a man is either taken under custody or some kind of restraint is put on his liberties and it is only then that he can move the court for his release or removal of restriction on his liberties on furnishing surety or executing personal bonds. The term `anticipatory bail' however given a new dimension to the concept of bail and under the law provisions of section 438 of the new coded person who reasonable anticipates imminent danger of being arrested or of putting some kind of restraint on his liberty can now seek a remedy from the court to ward off the consequences which are likely to damage his social reputation or status by involving him in the commission of a non bailable offence. This move can be made to the High Court or the court of Sessions for grafting bail in anticipatory of his arrest. 6. It is argued by learned Public Prosecutor that if the apprehension of a man crosses its limits of mental thinking and it becomes certain that he i3 going to be arrested either under a warrant issued by competent court or under the orders of the competent authority under section 55 (1) of the new code, then in that event resort could not be had to section 438 and the proper course to seek relief is by moving an application under section 439 of the Code. In order to strengthen his argument reference was made to the decisions of the Orissa High Court in Bhagirathi Mahapatra and others v. State, 1975 Cri. L. J. 1681 (Orissa) and of the Calcutta High court in Repurana Chandra Chatterjee, 1975 Cri. L.J. 1815 (Cal.) . It was also argued that section 438 can be invoked only when there are reasons to believe that he is likely to be arrested for committing a non bailable offence but as soon as that reason is converted into a certainly of arrest, section 438 Cr. P. C. cannot be invoked. 7. This argument of learned public prosecutor if accepted then, it will place the application of section 438 to the mercy of the authorities who have power either to make entry in the use diary under section 55 (1) to arrest a person or secure a warrant from a compleat court for the arrest of a man involved in the commission of a non bailable offence and it will render the provision futile. The effect of it would be defeat the purpose of section 438. The main purpose for enacting the provisions is to provide a remedy to a person who genuinely apprehends that he is likely to be disgraced or humiliated. The effect of it would be defeat the purpose of section 438. The main purpose for enacting the provisions is to provide a remedy to a person who genuinely apprehends that he is likely to be disgraced or humiliated. The provision of section 438 has been introduced by the legislature purposely give relief to one who believes that he has been falsely involved in a non bailable offence and if timely approach is not made to the court then he is likely to be humiliated. The language used by the legislature while enacting the section, does not in any manner give an indication that the warrant of arrest if procured by the investigating agency or a entry if made under section 55 (1) to arrest the person then the protection given by the Legislature to such a person will cease to exist. 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 and Calcutta authorities make it abundantly clear that these decisions hardly go to assist the learned Public prosecutor to strengthen his argument. It would be pertinent to note that applications under section 438 Cr. P. C. filed by the accused in those cases were ultimately allowed and the directions were issued by the court as required under the law. 8. In the Orissa case the court was asked to lay down the guidelines in consideration of which the anticipatory bail should be granted. The circumstances of that case were found to be sufficient to grant the anticipatory bail. This point was however not before the High Court whether a warrant issued by the court to arrest a person would render the provisions of section 438 inapplicable and therefore this authority is of little assistance to answer the question in issue. 9. The circumstances of that case were found to be sufficient to grant the anticipatory bail. This point was however not before the High Court whether a warrant issued by the court to arrest a person would render the provisions of section 438 inapplicable and therefore this authority is of little assistance to answer the question in issue. 9. In the Calcutta case the warrant of arrest had already been issued and therefore it was urged that the stage reached in the case was one beyond the stage of a mere apprehension or "reason to believe" and therefore section 438 could not apply to the circumstances of the case. This argument found favour with the learned Judges. With all respect, we feel we cannot subscribe to the view of the Calcutta court because for the simple reason that it is likely to place at the mercy of the investigating agency the protection and he safeguard which the legislature very much wanted to extend to a person who has been falsely involved in a non-bailable offence and who genuinely believes or apprehends that he is likely to be disgraced or humiliated. Mere issuing of a warrant or making an entry under section 55 (1) would not in any manner mitigate the intensity of the apprehension of a man or would remove the cause which gave him genuine reason to believe that if approach is not made to the High Court or the court of Sessions, then he will meet the humiliation at the hands of the police authorities. The officer.who registers a false case either deliberately or otherwise at the behest of certain influential person can at any time became instrumental to make entry for the arrest of a person under section 55 (1) Cr. C. P. and defeat the provisions of section 438 Cr. C. P. if the argument of the G. A. is accepted by us, The legislature did not intend, and could never have intended, that the power of granting anticipatory bail conferred on the court of sessions or High Court would depend on the will of the officer in-charge of the concerned police station or the investigating agency who could at any moment make an order under section 55 (1) Cr. P. C. even after the application for the issuing of the direction under section 438 is made by an aggrieved person. P. C. even after the application for the issuing of the direction under section 438 is made by an aggrieved person. If the argument of learned Public Prosecutor is accepted then the provision of section 438 would hardly help to advance the cause for which this provision was introduced in the new code. On the contrary, it is likely to suppress the remedy which the legislature very much wanted to provide to those who genuinely apprehended victimisation by the improper use of the process of law. 10. In view of the above discussion, we hold that the issue of the warrant of arrest or an order in writing for arrest under section 55 (1) would not operate as a bar to the resort under section 438 of the new code. he question is accordingly answered. *******