ORDER: 1. The question that poses for consideration is whether this is a fit case for the grant of anticipatory bail. Anticipatory bail is granted in anticipation of arrest and it is effective at the very moment of arrest unlike ordinary bail which is granted after arrest. The prohibition in Sec.437(1) that a person against whom there are reasonable grounds for believing that he is guilty of an offence punishable with death or imprisonment for life shall not be released on bail is not there in Sec.438 and it cannot be read into that section also. The discretion in granting anticipatory bail is very wide. But that judicial discretion has to be exercised only if the Court of Session or the High Court considers it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant. Discretion to refuse anticipatory bail is also there if the circumstances of the case so warrant, on considerations alike those mentioned in Sec.437 or which are generally considered to be relevant under Sec.439. The Court is free to refuse anticipatory bail if the materials on record justify such refusal. It is true that Art.21 of the Constitution provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. In order to meet this challenge the grounds for refusal of anticipatory bail must be fair, just and reasonable. The Court has also to see that investigation is the province of the police and an order for anticipatory bail should not operate as an inroad into the investigational powers of the police. In this connection it is relevant to note the observation of the Supreme Court in Gurbaksh Singh v. State of Punjab Gurbaksh Singh v. State of Punjab (1980)2 S.C.C. 565 :1980 S.C.C.(Crl.) 465:A.I.R 1980S.C. 1632: 1980 Crl.L.J. 1125: “Therefore the High Court and the Court of Session should be left free to exercise their jurisdiction under Sec.438 by a wise and careful use of their discretion which, by their long training and experience, they are ideally suited to do. The ends of justice will be better served by trusting these Courts to act objectively and in consonance with principles governing the grant of bail which are recognised over the grant of bail which are recognised over the years, than by divesting them of their discretion which the legislature has conferred upon them, by laying down inflexible rules of general application. The prayer in this case will have to be considered in the background of the principles mentioned above. It has to be further borne in mind that a direction under Sec.438 need be given only “if it thinks fit”. The Court is required to consider the material on record against the accused. Anticipatory bail is not to be granted as a matter of course in all cases where the applicant has to reason to believe that he may be arrested on an accusation of having committed a non-bailable offence. Grant or refusal of such bail must depend upon variety of circumstances, cumulative effect of which must enter the judicial verdict. The power under the section has to be exercised sparingly and in exceptional cases using the discretion on the facts of each case. An order under Sec.438 being an exceptional type there must be a special case made out for passing such an order. It should not be allowed to circumvent the normal procedure of arrest and investigation. Ulterior motives of harassment and reasonable possibility of the accused not absconding are only some of the considerations. Some little facts may be necessary in the exercise of the discretion to grant or refuse the prayer. 2. Petitioner is the Manager (under suspension) of the Ernakulam branch of the Dhanalakshmi Bank. A draft for Rs. One crore was issued purporting to be from that branch at a time when the petitioner was the manager. Petitioner and the respondent have two different versions regarding the draft and the circumstances under which it came into existence. Anyhow it is common ground that it is a spurious draft. The Bank had authority to issue draft only up to rupees nine lakhs while the impugned draft is for rupees one crore. 3. As Manager the petitioner was admittedly the exclusive custodian of the draft book. But he says that as a matter of practice access to the book is given to the peon who used to take them to the Manager whenever necessary. 3. As Manager the petitioner was admittedly the exclusive custodian of the draft book. But he says that as a matter of practice access to the book is given to the peon who used to take them to the Manager whenever necessary. Petitioner's case is this. One Krishna Kumar approached him for a draft for Rs.5,000. When the peon brought the draft book one sheet was found missing and he was told about this by the peon whose name is Radhakrishnan. Draft was issued to Krishna Kumar in the next sheet and the office was instructed to make note of the missing sheet. Head Office was also informed. Thereafter Krishna Kumar wanted refund of the draft amount to be paid to peon Radhakrishnan and the papers also to be returned to him. It was the missing sheet that was utilised for creating the spurious draft which was produced in Andhra Pradesh by one Dhananjayan, who is said to be rich and influential. It is the further case of the petitioner that he has no hand in the transaction and Krishna Kumar, Dhananjayan and their associates are now attempting to use their influence to implicate him. 4. On the other hand the Director of Public Prosecutions had a different story to say and it is this. Dhananjayan is a man of little means but one with bad antecedent and some influence. Early this year he went to Andhra Pradesh apparently to procure some rice. There he happened to meet one Prabhas Reddi who is doing Abkari business. From him Dhananjayan learned that Abkari contract is lucrative there. From there he alerted his Abkari friends at Cochin and persuaded them to participate in Abkari auction to be held by the District Collector, Vizag. Krishna Kumar and others are also his associates. As a condition precedent to the participation in auction there rupees one crore which is a equivalent of the monthly rent for the previous year had to be remitted. For that purpose they procured the disputed draft and presented it before the Collector, Vizag on 228.1985. That was issued by the Ernakulam branch of Dhanalakshmi Bank of which petitioner was the Manager and it contains the signatures purporting to be those of the petitioner who was the Manager as well as those of Assistant Manager, Cashier etc. For that purpose they procured the disputed draft and presented it before the Collector, Vizag on 228.1985. That was issued by the Ernakulam branch of Dhanalakshmi Bank of which petitioner was the Manager and it contains the signatures purporting to be those of the petitioner who was the Manager as well as those of Assistant Manager, Cashier etc. It proved suspicious and Crime No.321 of 1985 of the Vizag Police Station was registered and it is now under investigation. 5. The Director of Public Prosecutions said that investigation so far conducted points to the complicity of the petitioner also along with others and hence his arrest, questioning, search, seizure etc. are necessary. In support of these statements he pointed out certain facts brought out by investigation and they are: In a draft there must be the code number which is absent in this case. The number shown in the draft is not intended for any Bank in Andhra Pradesh but to a branch at Karakulam in Trivandrum District. The Manager and Assistant Manager are having power of attorney numbers, but those numbers shown in the draft are not correct. In the same flight in which the person who carried the draft went to Andhra Pradesh the Assistant Manager of the Ernakulam branch of Dhanalakshmi Bank, peon Radhakrishnan and others left for Andhra Pradesh with flight tickets booked for them by an Abkari Contractor at Ernakulam from his company account. They have not claimed any T.A. from the bank. That Contractor did not go because his mother died. From Dolphin Hotel at Vizag where these people were staying there were a number of Trunk Calss to 37547 which is the residence number of the petitioner at Ernakulam. From these and other facts which cannot be divulged at present it was contended that involvement of the petitioner is assured by investigation. 6. Petitioner's counsel says that the officials of the Bank went to Andhra Pradesh only to canvass business and T.A. will be claimed only if their errand is successful. According to him the Trunk Calss from Dolphin Hotel were by the Bank Officials and they were contracting him only in connection with the said official business. It is not necessary for me at this stage to deal further into these matters regarding a case which is only at the stage of investigation. According to him the Trunk Calss from Dolphin Hotel were by the Bank Officials and they were contracting him only in connection with the said official business. It is not necessary for me at this stage to deal further into these matters regarding a case which is only at the stage of investigation. Anyhow from these facts I could only say that the apprehension entertained by the Director of Public Prosecutions cannot be said to be baseless. Though the petitioner says that Krishna Kumar, Dhananjayan and others are using their influence and money to implicate him falsely, the argument of the Director of Public Prosecutions was that they are actually his associates. I was told that over and above questioning of the petitioner and effecting search and seizure, another possible difficulty, if the petitioner is released on bail, is that prevention of segregation of documents by him will become impossible and there is also the risk of himself tampering investigation. It is said that now there are six or seven suspects and many more are likely to have involvement and public interest demands refusal of anticipatory bail. 7. Sec.438 of the Code was introduced on the recommendations of the Law Commission in its report which made mention of the rich and influential persons trying to implicate their opponents in false cases for political and other reasons and trying to get their detention in custody by way of harassment. It is true that one of the objects of Sec.438 is to avoid such harassment in appropriate cases. But in this case I do not think that I will be justified at this stage in accepting the contention of the petitioner that he is being falsely implicated on account of the influence of Krishna Kumar, Dhananjayan and others. According to the investigating agency petitioner and all these persons are associates in this venture. It is also true that another consideration that has to weigh with the Court in granting anticipatoy bail is the conviction that the person may not abscond or misuse of the bail. Even though the counsel for the petitioner said that his client is prepared to co-operate with the investigating agency to any extent I cannot act on that statement alone ignoring all the apprehensions entertained on behalf of the investigating agency. Even though the counsel for the petitioner said that his client is prepared to co-operate with the investigating agency to any extent I cannot act on that statement alone ignoring all the apprehensions entertained on behalf of the investigating agency. If what is said by the Director of Public Prosecutions is correct this is a case which evolves public interest and the release of the petitioner at this stage is likely to affect the investigation and there by public interest adversely. In exercising the judicial discretion in granting anticipatory bail the Court should not be unmindful of the difficulties likely to be faced by the investigating agency and the public interest likely to be affected thereby. Investigation is the field of the police and not the province of Court and the actions of the Court should not be allowed to prejudice the investigation. I think that the particular facts and circumstances of the case mentioned above including the difficulties likely to be experienced by the investigating agency must definitely deter the Court in exercising the judicial discretion, on the basis of the principles enumerated earlier, in favour of the petitioner. 8. Finally the counsel for the petitioner requested that the investigating agency may be directed to permit his lawyer to be present when he is questioned. Art.22(1) of the Constitution provides that no person who is arrested shall be denied the right to consult, and to be defended by, a legal practitioner of his choice. That is a fundamental rule of law and the asistance of a lawyer cannot be denied not only to those who are arrested but to those who are arrested but to those who are not under arrest also. That request cannot be denied and it was not objected also. In Nandini Satpathy v. P.L. Dani Nandini Satpathy v. P.L. Dani A.I.R. 1978 S.C. 1025:1978 Crl.L.J. 968: (1978)2 S.C.C. 424 : 1978 S.C.C.(Crl) 236. The principle was laid down thus: “The spirit of Art.22(1) is that it is fundamental to the rule of law that the services of a lawyer shall be available for consultation to any accused person under circumstances of near-custodial interrogation. Moreover, the observance of the right against self-incrimination is best promoted by conceding to the accused the right to consult a legal practitioner of his choice. Moreover, the observance of the right against self-incrimination is best promoted by conceding to the accused the right to consult a legal practitioner of his choice. Lawyer's presence is a constitutional claim in some circumstances in our country also, and, in the context of Art.20(3), is an assurance of awareness and observance of the right to silence. Art.20(3) and Art.22(1) may, in a way, be telescoped by making it prudent for the Police to permit the Advocate of the accused, if there be one, to be present at the time he is examined. Overreaching Art20(3) andSec.161(2) will be obviated by this requirement. If an accused person expresses the wish to have his lawyer by his side when his examination goes on, this facility shall not be denied, without being exposed to the serious reproof that involuntary self-crimination secured in secrecy and by coercing the will, was the project”. The application for anticipatory bail is dismissed, but it is directed that the lawyer of the petitioner will be permitted to be present when he is questioned Application dismissed.