Judgment : The petitioner has filed this petition praying for grant of anticipatory bail to him in the event of his arrest by the police in connection with a case on the file of the Sub-Inspector of Police, Tank Factory Police Station, Avadi, Madras-54. 2. The contents of the affidavit filed by the petitioner, K.K. Sankaranarayanan, in support of the petition, are as follows: “The respondent, who is the Sub-Inspector of Police, Avadi Police Station, on an alleged complaint made by the Security Officer, Heavy Vehicles Factory, Avadi, Madras for alleged theft of iron gate, is now searching and looking out for me to secure me, arrest me and to implicate me in a case for a non-bailable offence. I humbly submit that I am an innocent person. I have not committed any offence. I am permanently settled in Avadi, Madras. 3. I further submit that I am married man, having 3 children to be looked after by me and my large family is depending upon me and I have to support them. 4. I further state that if I am arrested by the police, my life and carrier will be spoiled and my family will have to suffer. 5. I am purely innocent of the commission of the said alleged offence. However, I apprehend that the above said respondent may arrest me at any moment. 6. I am willing to appear and report before the Sub-Inspector of Police, Heavy Vehicles Factory at Avadi as and when required and undertake to abide by any condition that may be imposed on me for my release in the event of arrest by the police. Hence in the above circumstances, I pray that this honourable Court may be pleased to grant me anticipatory bail, in the event of my arrest by the above police and render justice.” 3. Section 438 of the Criminal Procedure Code, dealing with anticipatory bail, reads as follows: “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 Session 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 conditions 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 sub-section (3) of section 437, as if the bail were granted under that section. (3) 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 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).” 4. Reiterating the contents of the affidavit, learned Counsel for the petitioner submits that the petitioner may be released on bail in the event of his arrest by the respondent police in connection with any case that is registered or going to be registered against him. 5. Learned Government Advocate No. III submits that no case has been registered against the petitioner by the respondent police and therefore the petition for grant of anticipatory bail may be dismissed. 6. Learned Counsel for the petitioner submits that if there is no case registered against the petitioner herein he has to submit that he sails in the same boat that has been launched on behalf of the state. 7. It is really strange as to how applications of this nature when filed with very assertive allegations against police officers, could be dismissed on the representation made on behalf of the State that there is no case registered against the petitioner in the respondent police station. 8. 7. It is really strange as to how applications of this nature when filed with very assertive allegations against police officers, could be dismissed on the representation made on behalf of the State that there is no case registered against the petitioner in the respondent police station. 8. As a general rule, the State should, unless very sure about getting material during investigation, not stand very much in the way of the petitioner getting the benefits of sections 437 and 438 of the Criminal Procedure Code. As a matter of fact, section 438, Criminal Procedure Code, is an outcome of a feeling among the citizens of India that they should not be unnecessarily proceeded with especially when they are innocent, on the basis, of some false complaint emanating out of motive. 9. In respect of nan-bailable offences, all the conditions imposed by section 437, Criminal Procedure Code, are implicitly contained in section 438, Criminal Procedure, Code, as well. Hence, in order to successfully invoke the jurisdiction under section 438, Criminal Procedure Code, the petitioner charged with a non-bailable offence, apart from satisfying the conditions under section 437, Criminal Procedure Code, must, in addition, make out a special case for securing an order of anticipatory bail, which is of an exceptional type. He must prove that the charge leveled against him is mala fide and stems from ulterior motive. Mere allegation of mala fides by an offender and a fervent claim of innocence put forward by him are manifestly insufficient for arriving at such a conclusion by the Court. These are all principles enunciated by the Supreme Court of India in several decisions which have to be taken as guidance so far as grant of anticipatory bail is concerned. 10. This Court is going to incorporate those vital principles laid down by the Supreme Court for guidance of this Court in case of discussing the point that arises for consideration in a petition for grant of anticipatory bail because here are certain allegations made by the petitioner herein in an assertive manner against the respondent/police. This Court does not indulge in discussing the truth or otherwise of such allegations, because this Court is now to consider whether at this stage, the petition for anticipatory bail is to be dismissed or not. 11. This Court does not indulge in discussing the truth or otherwise of such allegations, because this Court is now to consider whether at this stage, the petition for anticipatory bail is to be dismissed or not. 11. It has been observed by the Supreme Court in State of Rajasthan, Jaipur v. Balchand alias Baliay1, as follows: "It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. Even so, the record of the petitioner in this case is that, while he has been on bail throughout in the trial Court and he was released after the judgment of the High Court, there is nothing to suggest that he has abused the trust placed in him by the Court, his social circumstances also are not so unfavourable in the sense of his being a desperate character or unsocial element who is likely to betray the confidence that the Court may place in him to turn up to take justice at the hands of he Court. He is stated to be a young mam of 27 years with a family to maintain. The circumstances and the social milieu do not militate against the petitioner being granted bail at this stage. At the same time any possibility of the absconsion or evasion or other abuse can be taken care of by a direction that the petitioner will report himself before the police station at Baren once every fortnight." 12. It is also laid down in Balachand Jain v. State of Madhya Pradesh2, as follows: "On a reading of section 438, Criminal Procedure Code, and rule 184, it can be laid down: (1) that section 438 of the Code, has not been repealed or overruled by rule 184 of the Rules but the two have to be read harmoniously without interfering with the spheres contemplated by each of those provisions. In fact, rule 184 of the Rules is only supplemental section 438 of the Code and contains the guidelines which have to be followed by the Court in passing orders for anticipatory bail in relation to cases covered by rule 184 of the Rules; (2) that there is no real inconsistency between section 438 of the Code and rule 184 of the Rules: (3) that section 438 of the Code is an extraordinary remedy and should be resorted to only in special cases. It would be desirable if the Court before passing an order under section 438 of the Code issues notice to the prosecution to get a clear picture of the entire situation; and (4) that in cases covered by rule 184 of the Rules the Court exercising power under section 436 or section 438 of the Code has got to comply with the conditions mentioned in clauses (a) and (b) of rule 184 and only after the Court has complied with those conditions that an order under any of these sections of the Code in respect of such offences could be passed. There does not appear to be any direct conflict between the provisions of rule 184 of the rules and section 438 of the Code. However, the conditions required by rule 184 of the Rules must be impliedly imported in section 438 of the Code, so as to form the main guidelines which have to be followed while the Court exercises its power under section 438 of the Code in offences contemplated by rule 184 of the Rules. Such an interpretation would meet the ends of justice, avoid all possible anomalies and would at the same time ensure and protect the liberty of the subject which appears to be the real intention of the Legislature in enshrining section 438 as a new provision for the first time in the Code. There is normal inconsistency between section 438 of the Code and rule 184 of the Rules and, therefore, the non obstante clause cannot be interpreted in a manner so as to repeal or override the provisions of section 438 of the Code, in respect] of cases where rule 184 of the Rules applies. There is normal inconsistency between section 438 of the Code and rule 184 of the Rules and, therefore, the non obstante clause cannot be interpreted in a manner so as to repeal or override the provisions of section 438 of the Code, in respect] of cases where rule 184 of the Rules applies. The scope of rule 184 of the Rules is wider than that of section 438 of the Code inasmuch as while section 438 can be invoked only in cases of non-bailable offences and not in cases of bailable offences. Rule 184 of the Rules would apply not only to non-bailalble offences but also to bailable offences and in these circumstances, therefore, the conditions mentioned in rule 184 would have to be impliedly imported into section 436 of the, Code, which deals with orders for bail regarding bailable offences. In other words, the position is that where a person who is an accused for offence contemplated by rule 184 of the Rules and which are bailable, yet he cannot get bail as a matter of right under section 436 of the Code unless the Court complies with the conditions laid down in rule 184, clauses (a) and (b). So far as the question of anticipatory bail is concerned that does not apply to bailable offences at all. The rule of prudence requires that notice should be given to the other side before passing a final order for anticipatory bail so that wrong order of anticipatory bail is not obtained by a party by placing incorrect or misleading facts or suppressing material facts. In future the Courts will exercise this power keeping these observations in view. In emergent cases the Courts may make an interim order of anticipatory bail before issuing notice to the other side. It is clear that the intention of the Legislature in enshrining the salutary provision in section 438 of the Code, which applies only to non-bailable offences was to see that the liberty of the subject is not put in jeopardy on frivolous grounds at the instance of unscrupulous or irresponsible persons or officers who may sometimes be in charge of prosecution.“ 13. It was laid down in Mahanthagouda v. State of Karnataka1, as follows: "On the ground that the name of the first petitioner is not in the complaint and the first information report and the second petitioner could not have committed the alleged offence as he was being treated by a doctor on the date of offence, the petitioners claimed anticipatory bail. Section 438 of the Criminal Procedure Code is an extraordinary remedy and should be resorted to only in special cases. It is desirable if the Court before passing an order under the section issues notice to the prosecution to get a clear picture of the entire situation. Section 438 should be read in conjunction with other provisions of law and the grant of blanket anticipatory bail cannot be read into the provision. The said power is not unguided or uncanalised, but all the limitations imposed in section 437 are implicit therein and must be read into section 438 as well. In addition to the limitations imposed in section 437, the petitioner must further make out a special case for the exercise of the power to grant anticipatory bail. He must prove that the charge levelled against him is mala fide and stems from ulterior motive. Mere allegation of mala fides by an offender and a vehement claim of innocence put forward by him are manifestly insufficient at such a conclusion by the Court. The burden of establishing the mala fides is on the person alleging it and it is for him to prima facie substantiate his allegation that the charge of serious non-bailable offence against him has been levelled mala fide. In respect of non-bailable offences, all the conditions imposed by section 437 of the Code are implicitly contained in section 438 as well. Where the nature of the charge is so serious as to’ be punishable with death or imprisonment for life, it would normally be inapt to exercise the power of the grant of anticipatory bail at the very threshold of the investigation unless the Court at that very stage is satisfied that such a charge is false or groundless. Where the nature of the charge is so serious as to’ be punishable with death or imprisonment for life, it would normally be inapt to exercise the power of the grant of anticipatory bail at the very threshold of the investigation unless the Court at that very stage is satisfied that such a charge is false or groundless. "Where the person is charged with an offence punishable with death or imprisonment for life and he does not establish that the said charge is groundless or that it is inspired by mala fides, bail cannot be granted normally under section 437, Criminal Procedure Code, and, therefore, anticipatory bail cannot be granted or such a person." 14. In Gurbaksh Singh Sibia v. State of Punjab1, it was held as follows: "The normal application of the provisions of section 438 of the Code would be cases where the charge itself is of frivolous nature. A case of this kind would be a fit to one exercise to jurisdiction in order to needlessly prevent the humiliation of the offender. Similarly, the source from which such a charge stems has been considered as of significance and whore it has been levelled by unscrupulous or irresponsible persons, that would itself be a ground for consideration in the exercise of the power. Where the Court can on adequate material come to a firm conclusion that the charge is totally false, it may nevertheless resort to section 438, however, serious be the nature of the crime. Section 438 of the Code is in the nature of a shield for protecting entirely innocent persons from malicious humiliation, if the necessary conditions for its exercise are satisfied. Care has to be taken that this provision does not become a sword in the hands of the unscrupulous persons to gain time for destroying the incriminating evidence against them and to mock at the legitimate investigative processes authorised by the law. The power under section 438 is not to be exercised in a vacuum, but only on the satisfaction of the conditions spelled out in the section itself. The jurisdictional fact for the exercise of the power under section 438 is the co-existence of the two conditions, namely, an existing accusation (or in any case an accusation which reasonably arises from the existing facts) and a reasonable apprehension of arrest on the basis of such an accusation. The jurisdictional fact for the exercise of the power under section 438 is the co-existence of the two conditions, namely, an existing accusation (or in any case an accusation which reasonably arises from the existing facts) and a reasonable apprehension of arrest on the basis of such an accusation. It is thus plain that the exercise of power under section 438 is with regard to a specific accusation and cannot be extended in a blanket fashion to cover all offences with which the petitioner may come to be charged. Therefore, no question of the grant of anticipatory bail can arise with regard to an accusation not yet levelled or in respect of an offence yet not committed. A person lawfully released on bail either on his own bond or with sureties cannot thereafter be deemed in fact or any legal fiction as being in the custody of a police officer for the purpose of section 27 of the Evidence Act, 1872. Mere allegation of mala fides by an offender and a vehement claim of innocence put forward by him are manifestly insufficient for arriving at a conclusion by the Court that the charge levelled against him is mala fide and stems from ulterior motive. There is hardly any case where a person seeking bail on a serious charge does not plead innocence and further does not allege some reason for his alleged false implication. If the allegations by themselves are to be accepted at their face value, then virtually in every case the power under section 438 would have to be exercised. Therefore, what indeed is an intraordinary power for exceptional circumstances would in. fact become routine and common place. That is not the, intent of the law. A mere claim of innocence and liberal allegations of mala fide motives invariably laid at the door of the investigating agency by the offender is not enough. The Court has to be independently satisfied about the prima facie falsity of the charge and the ulteriorness of the motive for levelling the same. Section 438 of the Code invariably operates at the very initial stage of the investigation and even the most competent prosecutor may not then be in a position to put before the Court conclusive material to bring the charge home against the person accused. Section 438 of the Code invariably operates at the very initial stage of the investigation and even the most competent prosecutor may not then be in a position to put before the Court conclusive material to bring the charge home against the person accused. To put the prosecutor to proof at the very inception of the investigation appears as running counter to the whole scheme of investigation into cognizable cases as laid down in Chapter XII of the Code. This, indeed, is not the stage for invoking the known maxim of the Criminal Law that the burden of proof rests upon the prosecution. That stage arrives at the end of the investigation and in the course of the trial itself. The inception of the investigation is not a trial. Thus the petitioner must show (and the Court must be wary that mere allegations of mala fides by the petitioner are inadequate) and the Court must be satisfied on materials before it that allegations of mala fides are substantial and the accusations appear to be false and groundless. It is difficult to unravel the crimes of corruption. It is harder to detect the same when it is committed by what is now a well known category of white-collar criminals. However, it is the hardest to bring to book when such crime stems from the corridors of executive power and the nitches of high offices. Therefore, the Courts must ever remain wary of throttling and in any way impeding the legitimate investigative process in such cases. In cases of serious economic offences involving blatant corruption at the higher rungs of executive and political power, the larger interest of the public and the State demand that the extraordinary power under section 438 of the Code be not exercised in favour of the offenders at the very threshold of the, investigation. From a reading of the relevant provisions of the Code together, it is plain that in a serious cognizable offence, the Code authorises the arrest and detention in custody of the offender for the first twenty four hours without the interposition of the Magistracy and further Police custody upto a period of 15 days with the authority of the Magistrate. It is clear that the arrest and interrogation in police custody for cognizable crime is not only visualised but expressly authorised by the Code. It is clear that the arrest and interrogation in police custody for cognizable crime is not only visualised but expressly authorised by the Code. Therefore, a mere joining of a person in the course of the investigation whilst an anticipatory bail is no substitute for investigation in custody in all those cases where his personal interrogation may be legitimately required. There is hardly any case where a party seeking bail would not zealously offer to join the investigation thereof and to similarly undertake not to tamper with the witnesses. If this by itself were to be sufficient then the provisions of section 617 (2) of the Code need hardly be ever resorted to. There is nothing in section 438 itself or in its Legislative history which could give the least indication that the provision was intended to override the legitimate procedure of investigation into serious crime which has been prescribed by the Code itself in Chapter XII of which section 167 (2) forms the material part. Indeed, in the event of a conflict the discretionary grant of anticipatory bail must give way to the statutory rights and duties under section 167 (2) of the Code." 15. In Shri Gurbaksh Singh Sibbia v. The State of Punjab1, the Supreme Court has held as follows: “No one can accuse the police of possessing a healing touch nor indeed does any one have misgivings in regard to constraints consequent upon confinement in police custody. But, society has come to accept the acquiesce in all that follows upon a police arrest with a certain amount of sang-froid, in so far as the ordinary rut of criminal investigation is concerned. The legislature has conferred a wide discretion on the High Court and the Court of Session to grant anticipatory bail, because it evidently felt, firstly, that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted and secondly, because the intention was to allow the higher Courts in echelon a some what free hand in the grant of relief in the nature of anticipatory bail. It has to be borne in mind that anticipatory bail is sought when there is a mere, apprehension of arrest on the accusation that the applicant has committed a non-bailable offence. A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. It has to be borne in mind that anticipatory bail is sought when there is a mere, apprehension of arrest on the accusation that the applicant has committed a non-bailable offence. A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which it is imperative to protect his freedom in so far as one may and to give full play to the presumption that he is innocent. In fact, the stage at which anticipatory bail is generally sought brings about its striking dissimilarity with situation in which a person who is arrested for the commission of a non-bailable offence asks for bail. In the latter situation, adequate data is available to the Court or can be called for by it, in the light of which it can grant or refuse relief and while granting it, modify it by the imposition of all or any of the conditions mentioned in section 437. Section 438 (1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has ‘reason to believe’ that he may be arrested for a non-bailable offence. The use of the expression ‘reason to believe’ shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere ‘fear’ is not ‘belief, for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that someone is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively because it is then along that the Court can determine whether the applicant has reason to believe that he may be so arrested. Section 438 (1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Section 438 (1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual’s liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely., Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate concerned under section 437 of the Code, as and when an occasion arises. Such a course will defeat the very object of section 438. Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power under section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if a first information report is not yet filed. Fourthly, anticipatory bail can be granted even after an first information report is filed, so long as the applicant has not been arrested. Fifthly, the provisions of section 438 cannot be invoked after the arrest of the accused. The grant of ‘anticipatory bail’ to an accused who is under arrest involves a contradiction in terms, in so far as the offence or offences for which he is arrested, are concerned. After arrest, the accused must seek his remedy under section 437 or section 439 of the Code if he wants to be released on bail in respect of the offence or offences for which he is arrested.” 16. This Court has incorporated the salient features of the provision under section 438 of the Criminal Procedure Code, in order to appreciate the position that confronts this Court with respect to this provision Where on behalf of the State it is submitted that there has been no case registered against the petitioners herein under any penal law of the land, whereas certain assertive statements have been made by the petitioners in their sworn affidavits which accompanied the petition for grant of anticipatory bail. This Court has applied its mind and wants to actually decide as to what it should do with respect to this petition, in that, can it content itself with merely dismissing this petition by observing that ‘on behalf of the State it has been represented that there has been no case registered against the petitioners and under these circumstances, this petition may be dismissed’ or is it necessary that there must be at least an indication in this application to the effect that this Court has applied its mind with respect to the very serious allegations that have been made in the .affidavits. In this context, I am quoting the words of Lord Chief Justice Coleridge: “As a general rule, prosecution unless far more extreme than in England in the nineteenth century is possible, is certain to be in vain. It is also true and I cannot help asserting it that it is an easy form of virtue. It is a more difficult form of virtue, quietly and unostentatiously to obey what we believe to be God’s will in our own lives. It is not very easy to do it and makes much less noise on the world. It is very easy to turn upon somebody who differs from us and in guise of zeal of God’s honour to attack somebody of a difference of opinion, whose life may be more pleasing to God and more conducive to His Honour than our own. And when it is done by persons whose own lives are not free from reproach and who take that particular form of zeal for God which consists in putting the criminal law in force against others that no doubt does more to create a sympathy with the defendant than with the prosecutor. And if it should be done by those who enjoy the wit of Voltaire and who do not turn away from the sneers of Gibbon and rather relish the irony of Hume, our reelings do not go with the prosecutors and we are rather disposed to sympathise with the defendant. And if it should be done by those who enjoy the wit of Voltaire and who do not turn away from the sneers of Gibbon and rather relish the irony of Hume, our reelings do not go with the prosecutors and we are rather disposed to sympathise with the defendant. It is still worse if the person who takes such a course takes it, not from a kind of notion that God wants his assistance and that he can give it less on his own account than by prosecuting others but it is mixed up with anything partisan or political feeling, then nothing can be more foreign to what is high minded or religious or noble in men’s conduct ; indeed it seems to me that anyone who will do that not for the honour of God, but for the purpose of the man, deserved the most disdainful disapprobation. Those persons are to be deprecated who would pervert the law, even with the best intentions and do evil that good may come whose damnation (says the apostle) is just.” “On Prosecution of Unpopular Causes” (Vide pp. 63 & 64 of Balaji’s Worlds great Speeches for Senior Classes — Balaji Publications, 103, Pycrofts Road, Madras-14. 17. Well. This Court should not spend any more time over this and as such, on the representation that has emanated on behalf of the State that there has been no case registered against the petitioner herein, the petition is dismissed. Petition dismissed.