JUDGMENT - R.A. JAHAGIRDAR, J.:---These four petitions seek to involve the jurisdiction of this Court under section 438 of the Code of Criminal Procedure, 1973 for obtaining what has been, for the sake of convenience, described as "anticipatory bail". The petitioners in Criminal Application No. 630 of 1978 is the principal accused in a criminal case registered with the Pachoda Police Station in Paithan Taluka of Aurangabad District. The Crime Register Number is 25 of 1978 and the allegations against the petitioner in Criminal Application No. 630 of 1978 and other petitioners are that pursuant to a criminal conspiracy they have committed forgery of certain documents and further that those documents have been used as genuine documents knowing them to be forged. Sections of the Indian Penal Code under which offences have been alleged are sections 120-B, 192, 193, 196, 197, 218, 466, 467, 471, 477 and section 34 or section 109 of the Indian Penal Code. It may be mentioned at this stage itself that the offences punishable under sections 467 and 477 are punishable with imprisonment for life. According to the skeleton facts as disclosed in the first information report, a copy of which has been made available to me and the facts as mentioned in the judgment of the Court below to which reference will be made a little later, the prosecution alleges that there were proceedings pending under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act. In those proceedings with view to retain some lands the petitioner in Criminal Application No. 630 of 1978, hereinafter referred to as "the principal accused", managed to get changed the record of the schools in which his sons were studying so that the ages of these sons were shown higher than the actual ages. In order to achieve this result, it was also necessary for him to secure applications for admissions of the sons also changed and according to the prosecution, he has done this also. In the conspiracy pursuant to which large-scale forgery took place all the petitioners were participants and therefore, section 120-B has been applied. 2. Apprehending arrest, all the four petitioners approached the Sessions Court of Aurangabad for obtaining anticipatory bail. Applications preferred by the petitioners were disposed of by the learned Additional Sessions Judge of Aurangabad by his judgment and order dated 2nd of June, 1978 by which he rejected all the applications. 2. Apprehending arrest, all the four petitioners approached the Sessions Court of Aurangabad for obtaining anticipatory bail. Applications preferred by the petitioners were disposed of by the learned Additional Sessions Judge of Aurangabad by his judgment and order dated 2nd of June, 1978 by which he rejected all the applications. While so doing, the learned Additional Sessions Judge took the view that the petitioners had not made out any special case for being released on anticipatory bail and in the absence of such special case there was no necessity of granting relief under section 438 of the Code. The learned Additional Sessions Judge relied upon certain observations contained in the judgment of the Full Bench of the Punjab and Haryana High Court in (Gurubaksh Singh v. State of Punjab)1, A.I.R. 1978 P. H. 1. Against the said order of the learned Additional Sessions Judge, these four petitions are filed. Though three of them have been described as criminal applications, they are criminal revision applications challenging the order of the learned Additional Sessions Judge. It is so evident from the averments made in the petitions themselves. That of course will not make any difference to the discussion on law because even if there is an error of law committed by the learned Additional Sessions Judge, this Court in its revisional jurisdiction can correct the same. 3. It has been argued on behalf of the petitioners that the offence alleged against the petitioners is such that it has completely taken place and the arrest and detention in custody of the petitioners-accused is wholly unnecessary. From the averments made in the first information report and from the circumstances which have emerged from the facts mentioned therein, according to the petitioner, it is abundantly clear that nothing more is likely to be done by the petitioners through the commission of the offence towards the obliteration of the offences. The offences alleged against the petitioners are essentially offences in relation to the documents and little if anything is likely to turn upon the oral testimony of the witnesses and, therefore, releasing the petitioners on bail is not likely to result in the tampering of witnesses. It is also mentioned that the principal accused is a man of substance and not of straw, holding responsible positions in several institutions in his Taluka, and therefore, he is not likely to abscond. It is also mentioned that the principal accused is a man of substance and not of straw, holding responsible positions in several institutions in his Taluka, and therefore, he is not likely to abscond. The learned Advocates appearing in support of these petitions also criticised the special case theory upon which reliance has been placed by the learned Additional Sessions Judge. In any case, say the learned Advocates, the case of those petitioners is in fact a special case. The principal accused is not likely to abscond; the other three accused are teachers belonging to a noble profession and they are not likely to abscond or to tamper with the prosecution witnesses. What exactly is the meaning of the special case upon which great reliance was placed by the learned Additional Sessions Judge will be analysed a little later in this judgment. Before at however, it would be necessary to notice the relevant provisions of law. 4. The provisions relating to the grant of bail are contained in Chapter XII and Chapter XXVI of the Code of Criminal Procedure, 1973. Section 167 of the Code describes the procedure when investigation cannot be completed in 24 hours. In such a case the Police Officer has to forward the accused to the nearest Judicial Magistrate who may remand the accused in the custody for not more than 15 days at a time. The maximum period of detention that can be authorised by the Magistrate cannot exceed 60 days. On the expiration of the said period of 60 days, the accused person is required to be released on bail if he is prepared and does furnish bail. It is further mentioned that every person released on bail under this section i.e., 167 shall be deemed to be so released under the provisions of Chapter XXXII for the purpose of that chapter. In the case of offence other than non-bailable offences, a person arrested can be released by an officer-in-charge of the Police Station itself or by the Court. It is so provided in section 436 of the Code. 5. Section 437 is somewhat more elaborate and examines apparently different types of situations. In the case of offence other than non-bailable offences, a person arrested can be released by an officer-in-charge of the Police Station itself or by the Court. It is so provided in section 436 of the Code. 5. Section 437 is somewhat more elaborate and examines apparently different types of situations. This section refers to the granting of bail in case of non-bailable offences and describes the powers of the Magistrate or the officer-in-charge of Police Station and in terms excludes the powers of the High Court and the Court of Sessions from its purview. According to this section, when any person accused of or suspected of the commission of non-bailable offence is arrested, then the Court, before whom he is brought, may release him on bail subject however to one condition that a Court shall not release such a person on bail if there appears reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life. In other words, the Magistrate himself or for that matter an officer-in-charge of the Police Station cannot release a person accused of any non-bailable offence if this non-bailable offence is one punishable with death or imprisonment for life. There are two proviso to sub-section (1) to which no reference need be made at the moment. In sub-section (3) of section 437 it is mentioned that when a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code of abetment of, or conspiracy or attempt to commit any such offence, is being released by the Court under sub-section (1) referred to above, then the Court is empowered to impose some conditions. The conditions that may be imposed by the Court must be necessary for the purpose of ensuring that such a person shall attend in accordance with the conditions of the bond, that such a person shall not commit an offence similar to the one of which he is accused, or otherwise are necessary in the interest of justice. The conditions that may be imposed by the Court must be necessary for the purpose of ensuring that such a person shall attend in accordance with the conditions of the bond, that such a person shall not commit an offence similar to the one of which he is accused, or otherwise are necessary in the interest of justice. The conditions that may be imposed by the Court under section 438 can be many and of an unlimited character provided that such conditions are necessary for the purposes mentioned in Clauses (a), (b) and (c) of sub-section (3) of section 437. 6. Whenever thereof a person accused of or suspected of the commission of any non-bailable offence is produced before a Magistrate, the procedure regarding the bail in respect of that accused is covered by the provisions of section 437 of the Code. The provisions of section 437 come into operation only when a person accused of non-bailable offence is brought before the Court and not earlier. The Code of 1973 further contains the provision in section 438 under which a person who has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, may approach the High Court or the Court of Session for a direction that he should be released on bail in the event of his being arrested by the police. This sections deals with, what has been for brevitys sake called "anticipatory bail". Bhagwati, J. delivering his judgment on behalf of himself and on behalf of Gupta, J. in (Balchand Jain v. State of Madhya Pradesh)2, A.I.R. 1977 S.C. 366, pointed out as follows : "We do not find in this section the words anticipatory bail, but that is clearly the subject with which the section deals. In fact, anticipatory bail is a misnomer. It is not as if bail is presently granted by the Court in anticipation of arrest. When the Court grants anticipatory bail, what it does is to make an order that in the event of arrest, a person shall be released on bail. Manifestly there is no question of release on bail unless a person is arrested and, therefore, it is only on arrest that the order granting anticipatory bail becomes operative...." Indeed the marginal note of the section itself is clear on this because it contains the direction for granting bail apprehending arrest. Manifestly there is no question of release on bail unless a person is arrested and, therefore, it is only on arrest that the order granting anticipatory bail becomes operative...." Indeed the marginal note of the section itself is clear on this because it contains the direction for granting bail apprehending arrest. Sub-section (2) of section 438 specifies that when the High Court or the Court of Session makes a direction under the previous sub-section, the Court may include such conditions in such directions in the light of the facts of a particular case as it may think fit. These conditions may include a condition that the person shall make himself available for interrogation by a Police Officer when so required or that the person shall not directly or indirectly tamper with the witnesses concerned in the case or that the person shall not leave this country without the previous permission of the Court. It is also further provided that the conditions which may be imposed by the Court under sub-section (3) of section 437 for the purpose mentioned in Clauses (a), (b) and (c) of that sub-section may also be imposed by the High Court or the Court of Session. It must however be mentioned at this stage that though there is reference in Clause (iv) of section 438(2) to sub-section (3) of section 437, there is no other reference in section 438 to section 437. While describing the provisions contained in section 437 I have already mentioned that the power given under sub-section (1) of that section of releasing a person accused of the commission of non-bailable offence cannot be exercised if there is a reasonable ground for believing that he has committed an offence punishable with death or imprisonment for life. 7. The provisions of sections 437 and 438 came up for interpretation before the Supreme Court in Balchand Jains case referred to above. In that case two judgments were given-one by Bhagwati, J. on behalf of himself and on behalf of Gupta, J. and another by Fazl Ali, J. According to my understanding of the report contained in the A.I.R., the judgment of Fazl Ali, J. is the leading judgment though it is printed after the judgment given on behalf of two Judges. The judgment of Fazl Ali, J. sets out the facts of the case as well as an analysis in depth of both the sections. The judgment of Fazl Ali, J. sets out the facts of the case as well as an analysis in depth of both the sections. In the judgment of Bhagwati, J. the historical background of the insertion of section 438 in the Criminal Procedure Code has been dealt with and explained. Before the Supreme Court the question was whether anticipatory bail under section 438 could be given for a person who was likely to be detained under Rule 184 of the Defence of India Rules. The unanimous answer of the Supreme Court was in the affirmative. Bhagwati, J. speaking on behalf of himself and on behalf of Gupta, J. traced the historical background and the context of section 438 of the Code of 1973 and then proceeded to lay down that there was nothing in Rule 184 which precludes the application of section 438 to a person detained or to be detained under Rule 184. Fazl Ali, J. after setting out the facts of the case which came up from the High Court of Madhya Pradesh proceeded to give a detailed analysis of the provisions contained in section 437 and section 438 of the Code. In particular in paragraph 17 of the judgment of Fazl Ali, J. interrelationship between section 437 and 438 has been considered and it has been laid down as follows :--- ".....As section 438 immediately follows section 437 which is the main provisions for bail in respect of non-bailable offence it is manifest that the conditions imposed by section 437(1) are implicitly contained in section 438 of the Code. Otherwise the result would be that a person who is accused of murder can get away under section 438 by obtaining an order for anticipatory bail without the necessity of proving that there were reasonable grounds for believing that he was not guilty of offence punishable with death or imprisonment for life. Such a course would render the provisions of section 437 nugatory and will give a free licence to the accused persons charged with non-bailable offence to get easy bail by approaching the Court under section 438 and by-passing section 437 of the Code. This, we feel, could never have been the intention of the legislature....." There is, in my opinion, sufficient authority in these observations to hold that the exercise of the powers contained in section 438 of the Code is not untrammelled or uncontrolled. This, we feel, could never have been the intention of the legislature....." There is, in my opinion, sufficient authority in these observations to hold that the exercise of the powers contained in section 438 of the Code is not untrammelled or uncontrolled. Indeed Fazl Ali, J. proceeds further to point out that section 438 does not bestow unguided or unchannalised power to the High Court or Sessions Court to pass an order for anticipatory bail. This power itself being of exceptional type has to be used in exceptional circumstances. In other words, says Fazl Ali, J., apart from the conditions in section 437, a special case ought to be made out for inviting the Court to pass an order for anticipatory bail under section 438 of the Code. That the powers are exceptional and are to be used in exceptional cases has also been laid down in the judgment of Bhagwati, J. as follows : "...Now, this power of granting anticipatory bail is somewhat extraordinary in character and it is only in exceptional cases where it appears that a person might be falsely implicated, or a frivolous case might be launched against him, or 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 that such power is to be exercised...." Merely because the power for granting anticipatory bail has been given to the High Court and the Sessions Court under section 438, it does not follow that this power can be exercised in a routine manner or for the purpose of by-passing the provisions of section 437. What could not have been done under section 437 after arrest cannot, in my opinion, be done under section 438 before arrest. It is therefore, clear to my mind that when a person comes to the Court under section 438 for being released on bail in the event of arrest for offence punishable with death or imprisonment for life, the Court under section 438 cannot release him if there are reasonable grounds for believing that he has committed such an offence. The restrictions imposed upon the exercise of the power by section 437(1) upon a Magistrate are incorporated into section 438 and even the High Court or the Sessions Court cannot exercise the power of releasing the person on anticipatory bail. The restrictions imposed upon the exercise of the power by section 437(1) upon a Magistrate are incorporated into section 438 and even the High Court or the Sessions Court cannot exercise the power of releasing the person on anticipatory bail. This indeed is the ratio laid down by Fazl Ali, J. in his concurring judgment. 8. The learned Advocates appearing for the petitioners however invited my attention to paragraph 18 of the judgment of Fazl Ali, J. which is in the following terms :--- "The legislature never intended that while in such serious offences like murder or those punishable with death or imprisonment for life the accused should have the facility of an order of anticipatory bail, in offences of a less severe kind he should be denied benefit of section 438 of the Code by invoking Rule 184 of the Rules." Naturally what has been mentioned in paragraph 18 is the general scheme of section 438. Obviously, paragraph 18 could not say something contrary to what has been in clear cut terms laid down in paragraph 17. The sentence in paragraph 18 implies as even section 437(1) implies that a person accused of an offence punishable with death or imprisonment for life can be released on bail if there are no reasonable grounds for believing that he has committed such an offence. 9. The petitioners can also make an attempt to secure support for their case from another sentence falling in the judgment of Bhagwati, J. towards the end of paragraph 2 : "It is a power exercisable in case of an anticipated accusation of non-bailable offence and there is no limitation as to the category of non-bailable offence in respect of which the power can be exercised by the appropriate Court." From this it could be contended on behalf of the petitioners that under section 438 bail can be given irrespective of the category of non-bailable offence. In other words, even an offence punishable with imprisonment for life or death can also be one for which bail can be granted under section 438. In my opinion, this interpretation of the judgment of Bhagwati, J. is not permissible. What Bhagwati, J. was discussing was the powers under section 438 in the context of Rule 184 of the Defence of India Rules. In my opinion, this interpretation of the judgment of Bhagwati, J. is not permissible. What Bhagwati, J. was discussing was the powers under section 438 in the context of Rule 184 of the Defence of India Rules. Apart from the proposition that anticipatory bail could be given in respect of offences covered by Rule 184 of the Defence of India Rules, what was intended by the above mentioned sentence is that irrespective of whether non-bailable offences are under the Indian Penal Code or under the Defence of India Rules the power contained under section 438 can be exercised. It may also be mentioned that both Bhagwati, J. and Fazl Ali, J. referred to each others judgment and if the interpretation suggested by the above sentence is accepted, then there will be almost irreconcilable inconsistency between the two judgments. This cannot be so because as I have already mentioned above, each judgment refers to the other and if there were inconsistencies it could have been the subject of explanation in the judgments. It must therefore, be assumed that the view contained in Fazl Alis judgment is not dissented from by Bhagwati, J. in his judgment. 10. I am thus of the view that the restrictions contained in section 437 must be immpliedly read in section 438 for additional reason. Normally the stage when a person approaches a Court for being released on bail is when he is arrested and brought before the Court. This stage has been completely dealt with in section 437. By the insertion of section 438 the legislature has advanced that stage a little earlier but has not enlarged the scope or powers of granting bail. In this scheme of the Act it is implicit that the powers of anticipatory bail could not be exercised in the manner in which the powers of bail could not have been exercised by the Magistrate under section 437. The nature of the powers, in my opinion, is the same despite the authorities mentioned in the two sections being different. Therefore, in case of a serious offence punishable with death or punishable with imprisonment for life, if there are reasonable grounds for believing that such an offence has been committed then even under section 438 anticipatory bail cannot be granted. Therefore, in case of a serious offence punishable with death or punishable with imprisonment for life, if there are reasonable grounds for believing that such an offence has been committed then even under section 438 anticipatory bail cannot be granted. Investigations must be allowed to go on and in cases of serious offences the legislature has intended that the investigation must be assisted by the presence of the accused in the custody either of the police or of the Magistrate. 11. This, in my opinion, is also the way in which the judgment of the Supreme Court has been understood by the Full Bench of the Punjab and Haryana High Court in Gurubaksh Singh v. State of Punjab. In paragraph 51 of the judgment the Full Bench has mentioned that Balchand Jains case is an authority that lays down that in respect of non-bailable offence, the conditions imposed by section 437 are implicitly contained in section 438 as well. In paragraph 67 of the judgment the Full Bench summarised the main conclusions at which they have arrived. The third conclusion mentioned in the said paragraph specifically says that the power under section 438 is not unguided or unchannalised but all the limitations imposed in the preceding section 437 are implicit therein and must be read into section 438 as well. 12. In a judgment delivered by a Single Judge of Gujarat High Court in (Somabhai Chaturbhai Patel v. State of Gujarat)3, 18 Guj.L.R. 131, observations somewhat similar in nature have been made. Though in paragraph 3 of the judgment it is mentioned that section 438 is widely worded and does not engraft any limitation on the power of the Court, in paragraph 4 precept No. 4 leads support tot he view which I have taken. It is in the following terms : "The Court will not exercise the power to enlarge on bail at the stage of pendency of investigation in cases where the Court would be slow to do so after investigations have been completed or closed. In other words, the Court will not be hustled into exercising these powers in cases where the offence is one while is punishable with death or imprisonment for life." 13. In other words, the Court will not be hustled into exercising these powers in cases where the offence is one while is punishable with death or imprisonment for life." 13. It must therefore, be understood that the powers under section 438 are wider in a sense that they could be exercised earlier than the person is arrested; but they are narrower in another sense viz., that it contains, apart from the restrictions mentioned in the section itself also the restrictions contained in section 437 and further that the Court is empowered to impose several conditions as mentioned therein. The power is undoubtedly extraordinary to be exercised in exceptional cases and therefore it has been given to the higher echelons of the judiciary. The fact that the High Court and Sessions Court have been given this power by itself does not lead to the conclusion that the powers are wider than the powers exercisable by the Magistrate. It is the power contained in section 438 which is to be exercised by the High Court and not the powers of the High Court under section 438. The following propositions, in my opinion emerge from the above mentioned discussions : (1) The restrictions contained in section 437(1) must be impliedly read in the powers mentioned in section 438. This means that the person who is reasonably suspected or believed to have committed the offence punishable with death or for imprisonment for life shall not be released on anticipatory bail under section 438. (2) The powers under section 438 are extra-ordinary and are to be used in exceptional cases. What some of those exceptional cases are have been mentioned in the judgment of Bhagwati, J. in Balchand Jains case. That list should not however, be regarded as exhaustive of all the exceptional cases under which power under section 438 could be exercised. (3) Under section 438 the Court is free to examine on the material before it whether there are reasonable grounds for believing that the petitioners have committed an offence for which he should not be released on bail under section 437(1). (4) From the nature of the powers and from the observations contained in the judgment of the Supreme Court in Balchand Jains case it is also clear that anticipatory bail under section 438 cannot be given without hearing the State. (4) From the nature of the powers and from the observations contained in the judgment of the Supreme Court in Balchand Jains case it is also clear that anticipatory bail under section 438 cannot be given without hearing the State. At best, on the facts of a particular case an order for interim bail can be made. 14. Returning to the facts of the petitions before me, the allegation against the petitioners is that they have pursuant to a conspiracy prepared false documents for the purpose of showing different ages of the sons of the principal accused than the actual ages recorded in the school register. In other words documents are alleged to have been forged showing different dates of birth of the sons of the principal accused. Prima facie without further material it appears to me that the offences which the accused might be said to have committed on these allegations do not fall under section 467 or section 477 of the Indian Penal Code. The offences under these sections alone are punishable with imprisonment for life for which neither anticipatory bail nor a bail under section 437(1) can be granted. If the offences which prima facie are disclosed in the facts of the present case in the first information did not fall under section 467 or section 477 of the Indian Penal Code, the petitioners have made out a case that there are reasonable grounds for believing that they are not guilty of offences punishable with imprisonment for life. They are therefore, entitled to an order from this Court for anticipatory bail under section 438 of the Cri.P.C. The offences have already been completed, the evidence will consist mostly of documents which are already in the possession of the investigating agency; and the accused are not likely to tamper with the witnesses. These factors, in my opinion, constitute on the facts of this case special circumstances in which anticipatory bail can be granted. However I purpose to grant the bail for a definite period because by that time the investigation will be completed and a charge-sheet will be filed before the Magistrate who must feel free to examine the material that will be placed before him and decide whether they would be entitled to get a bail under section 437(1) of the Criminal Procedure Code. 15. In the result, I pass the following order. 16. 15. In the result, I pass the following order. 16. The petitioner in Criminal Application No. 630 of 1978 viz. Shrimant Appaji Patil shall be released on bail on executing a personal bond in the sum of Rs. 5000/- with a surety of the like amount if he is arrested in connection with Crime No. 25 of 1978 of Pachoda Police Station. The order for release on bail will remain operative only for a period of 15 days from the date of arrest. Each of the petitioners in Criminal Revision Applications Nos. 631 of 1978, 632 of 1978 and 203 of 1978 shall be released on bail on each of them executing a personal bond in the sum of Rs. 2000/- with a surety of the like amount in each case he is arrested in connection with Crime No. 25 of 1978 of the Pachod Police Station. Each of the four petitioners shall follow the following conditions which shall be incorporated as conditions of bail viz. that (1) he shall make himself available to the Investigating Officer for interrogations and when required to do so and (2) that he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case or shall try to have access to the records of the school where the sons of Shrimant Appaji Patil were studying. After the bail period of 15 days from the date of the arrest, the Magistrate, after considering the charge-sheet and other material placed before him, shall be free to pass such order as he may deem fit under section 437(1) of the Criminal Procedure Code untrammelled by any observations that I might have made in this judgment. -----