Judgment N.P.SINGH, J. 1. Whether the High Court or the Court of Session has power to stay the arrest of the accused person while entertaining an application for consideration, for grant of anticipatory bail is the question which has to be answered. 2. According to the petitioner, the primary object for introduction of S.438 of the Cr. P.C. 1973 (hereinafter referred to as the Code), vesting power in the High Court and the Court of Session to grant anticipatory bail, was to ensure that a citizen is not arrested and humiliated on false accusations. As such while entertaining an application for anticipatory bail, if an order staying arrest is not passed the whole exercise may end into futility, because in the meantime the accused may be arrested. 3. The Law Commission, in its Forty-First Report, said about the need for a provision to grant anticipatory bail in the following words : - "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 some 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." The Law Commission, in its Forty-Eighth Report, observed in para 31, while referring to the draft Bill of the new Code of Criminal Procedure as follows :- "The Bill introduces a provision for the grant of anticipatory bail, This is substantially in accordance with the recommendations made by the previous Commission (41st Report). We agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised. We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the public prosecutor. The initial order should only be an interim one. We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the public prosecutor. The initial order should only be an interim one. Further the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the Court is satisfied that such a direction is necessary in the interests of justice." 4. In the Statement of Objects and Reasons of the Bill of the Code of Criminal Procedure in respect of Cl. 447 which was incorporated in the Code as S.438 it was said as follows : - "As recommended by the Commission, a new provision is being made enabling the superior Courts to grant anticipatory bail, i.e., a direction to release a person on bail issued even before the person is arrested. With a view to avoid the possibility of the person hampering the investigation, special provision is being made that the Court granting anticipatory bail may impose such conditions as it thinks fit. These conditions may be that a person shall make himself available to the Investigating Officer as and when required and shall not do anything to hamper investigation." From the Statement of Objects and Reasons for introduction of S.438 of the Code it is apparent that the framers of the Code on the basis of recommendation of the Law Commission purported to evolve a device by which a citizen is not forced to face disgrace at the instance of influential persons who try to implicate their rivals in false cases; but the Law Commission, at the same time, had also issued a note of caution that such power should not be exercised in a routine manner. 5. Chapter XII of the Code contains provisions regarding lodging of a case in respect of a cognizable offence before the police and investigation thereof. S.157(1) provides that if as officer in charge of a police station has reasons to suspect the commission of an offence which he is empowered to investigate, he shall proceed in person, or shall depute one of his subordinate officers to proceed, to the spot, "to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender". After arrest such police officer is entitled to interrogate the accused and to find out whether he is prepared to make a confession. The police officer is also entitled to take the accused in custody of the place where offence was committed or to any other place connected with the commission of the offence is question for discovery of any evidence in relation to the said offence, on the basis of information received from such accused person and to discover such evidence within the limitation prescribed by S.27 of the Evidence Act. The investigating officer can also arrange a test identification parade in which the suspected accused can be put for identification by the witnesses. In view of the aforesaid provisions, there cannot be any dispute that the arrest of the accused is an integral part and a vital step in the investigation of the case. 6. Now, in this background, it has to be examined as to when this Court or the Court of Session directs that during the pendency of the application for anticipatory bail the accused concerned shall not be arrested, does it not amount to interfering with the investigation? This is an old controversy which has been raised from time to time. While considering the power the High Court to quash the investigation in the well known case of Emperor V/s. Nazir Ahmed, AIR 1945 PC 18 : ((1945) 46 Cri LJ 413), it was pointed out as follows : - "Just as it is essential that every one accused of a crime should have free access to a Court of Justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under S.491, Cr. P.C., to give directions in the nature of habeas corpus." Again in the cases of State of West Bengal V/s. S.N. Basak, AIR 1963 SC 447 : (1963 (1) Cri LJ 341) and Johan Singh V/s. Delhi Administration, AIR 1974 SC 1146 : (1974 Cri LJ 802) the same view was reiterated by the Supreme Court that police having statutory right to investigate into a circumstance of any cognizable offence that right should not be interfered with under exercise of power under S.439 or S.561 A of the old Code. 7. Recently, in the case of State of Bihar V/s. J.A.C. Saldanna, AIR 1980 SC 326 : (1980 Cri LJ 98) it was observed as follows :- "There is a clear-cut and well demarcated sphere of activity is the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department, the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounden duty to investigate into the offence and bring the Offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court requesting the Court to take cognizance of the offence under S.190 of the Code its duty comes to an end. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court requesting the Court to take cognizance of the offence under S.190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the Court the police function of investigation comes to an end subject to the provisions contained in S.173(8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the Court, and to award adequate punishment according to law for the offence proved to the satisfaction of the Court. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate." Once the Code sanction the arrest of an accused alleged to have committed a cognizable offence, it becomes a part of investigation. As such the Courts before interfering with that statutory right of the police has to trace a power under the provisions of the Code before such power can be exercised at the instance of the accused persons. 8. Now it has to be examined whether such power flows from S.438 of the Code. S.438 of the Code is as follows : - "438.(1) When any person has reason to believe that he may be arrested on an accusation of having committed a nonbailable 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-s. (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-s. (3) of S.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 officer to give bail, he shall be 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-s. (1)." On a plain reading, sub-s. (1) of S.438 of the Code vests power in the High Court or in the Court of Session to direct "that in the event of such arrest" such person shall be released on bail. In my view, in S.438 of the Code, a power to stay arrest of the accused pending consideration of an application for anticipatory bail cannot be read. That section only vests power in the High Court and the Court of Session to direct release of the accused person on bail in the event of his arrest. Sub-s. (2) of that section requires that while directing such release on bail the conditions mentioned therein should be imposed on the accused so that the investigation is not hampered in any manner. 9. Mr. Rosh Bihari Singh, the Sr. Counsel who appeared at the instance of the Court, very fairly conceded that power to stay arrest of the accused cannot be read under S.438 of the Code. 9. Mr. Rosh Bihari Singh, the Sr. Counsel who appeared at the instance of the Court, very fairly conceded that power to stay arrest of the accused cannot be read under S.438 of the Code. He submitted that such power can be exercised under S.482 of the Code for the ends of justice, so that the application for anticipatory bail may not become infractuous. Mr. Basudeo Prasad, who also appeared at the instance of the Court went a little ahead and submitted that the power to stay arrest of the accused has to be read as an implied or incidental power flowing from S.438 of the Code so that the object of the section is not frustrated. It cannot be disputed that when the framers of the Code introduced an exceptional provision for grant of bail, before arrest which was to become operative no sooner the accused is arrested, the Courts have to see that said power where needs to be exercised is exercised effectively. But once it is held that the right of the police to arrest an accused against whom a prima facie case for commissions of a cognizable offence has been made out, is a part of investigation, in my view, if the High Court or the Court of Session passes an order directing the police not to arrest such person it does amount to interfering with the investigation. 10. The Supreme Court in the case of Balchand V/s. State of M.P., AIR 1977 SC 366 : (1977 Cri LJ 225) observed as follows : - "Although this condition is not mentioned in S.438 of the Code but having regard to the setting in which the section is placed and the statement of the objects and reasons which is actually based on the recommendations of the Law Commission, we think that 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. We hope that in future the Courts will exercise this power keeping our observations in view. We hope that in future the Courts will exercise this power keeping our observations in view. We may of course point out that in emergent cases the Courts may make an interim order of anticipatory bail before issuing notice to the other side." Again a larger Bench of the Supreme Court in the case of Gurbaksh Singh V/s. State of Punjab, AIR 1980 SC 1632 : (1980 Cri LJ 1125) observed as follows :- "There was some discussion before us on certain minor modalities regarding the passing of bail orders under S.438(1). Can an order of bail be passed under that section without notice to the public prosecutor? It can be. But notice should issue to the public prosecutor or the Government Advocate forthwith and the question of bail should be re-examined in the light of the respective contentions of the parties. The ad interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage." The Supreme Court being conscious of the fact that in some applications for anticipatory bail an interim order may be necessary, observed that Courts may make an interim order for anticipatory bail. But, perhaps, because of the series of judgments mentioned above it was not said that an interim order in the nature of directing stay of arrest of the accused can be passed. It need not be pointed out that any interim order of anticipatory bail with conditions mentioned in sub-s. (2) of S.438 of the Code stands on a different footing from a blanket order saying that accused shall, not be arrested during the pendency of the application for anticipatory bail. It has come to the notice of this Court that such orders have continued for months awaiting the receipt of the case diary and the supervision note. The consequence of such blanket interim order can be well imagined. During this period the accused may not be put to the test identification parade; he cannot be interrogated for ascertaining whether he was prepared to make a confession ; he cannot be taken to the place of the commission of the offence or to any other place for discovery of any evidence connected with the offence in accordance with the provisions of S.27 of the Evidence Act. The accused can even leave the country and the investigating agency can be a mute spectator; there being a bar on their power to arrest such an accused. 11. The Supreme Court in the case of Gurbaksh Singh V/s. State of Punjab, (1980 Cri LJ 1125) (supra) has depricated even a blanket order of anticipatory bail as follows : - "A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of what kind of offence is alleged to have been committed by the applicant and when, an order of bail which comprehends allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the applicant even if he commits, say, a murder in the presence of the public. Such an order can then become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed." The situation will be worst if a blanket order is passed directing the police not to arrest the petitioner. In my opinion, the High Court or the Court of Session cannot stay arrest of an accused person, because no such power flows either from S.438 or from any other provision of the Code including S.482. In view of the series of judgments, mentioned above, in respect of power of the High Court under S.561A of the old Code which has been replaced by S.482 of the new Code, it is too late to urge that the High Court can order stay of arrest under S.482 of the Code even if that is not permissible under S.438 of the Code. Of course in appropriate cases interim anticipatory bail for a limited period can be granted with the conditions mentioned in sub-s. (2) of S.438 of the Code, so that the investigation is not stifled in any manner. Such interim order should not be passed in a routine manner. The Supreme Court in the cases of Balchand V/s. State of M.P., (1977 Cri LJ 225) (supra) and Gurbaksh Singh V/s. State of Punjab, (1980 Cri LJ 1125) (supra) observed "that in emergent cases the Courts may make an interim order of anticipatory bail before issuing notice to the other side". The Supreme Court in the cases of Balchand V/s. State of M.P., (1977 Cri LJ 225) (supra) and Gurbaksh Singh V/s. State of Punjab, (1980 Cri LJ 1125) (supra) observed "that in emergent cases the Courts may make an interim order of anticipatory bail before issuing notice to the other side". The expression "may" used by the Supreme Court makes it clear that whether interim anticipatory bail should be granted or not has to be decided by the Court concerned. Even in the case where interim order of anticipatory bail is granted the Court has to consider at the final hearing thereof whether such interim order of anticipatory bail should be confirmed or recalled on perusal of the materials collected during the investigation. It need not be pointed out that an interim order passed without perusal of the case diary or on the basis of misstatement of fact made has no sanctity and Courts should not be hesitant in recalling the same and directing the accused to surrender and make prayer for regular bail. The Police and Courts have been enjoined by the provisions of the Code a duty that a person who has committed a crime is brought to the book and reaps the consequence of his action but, at the same time, an innocent person does not become victim of manipulation and machination of his adversary. But, while achieving this object, the Police as well as Courts should know their limitations and should not directly or indirectly interfere with the functioning of each other. 12 The application should now be listed before a learned Judge for disposal in accordance with law. S.S.SANDHAWALIA, J. 13 I agree.