R. K. DASH, J. ( 1 ) THE petitioner, presently holding a high office as the Advocate General of Orissa, by filing the present petition under Section 438, Cr. P. C. has prayed that in the event of arrest by the Police in a case instituted by one Anjana Misra (hereinafter referred to as 'prosecutrix') under Sections 354 and 376/511, IPC, he may be ordered to be released on bail. ( 2 ) FOR better appreciation of the case, a few facts need be stated. The prosecutrix, wife of an I. F. S. (Indian Forest Service) officer and daughter of a retired Chief Engineer, has been staying in 'basundhara', a place of shelter for destitutes situated in Cuttack town. Her merital abode is in troubled water for quite some time. It is alleged that she has been subjected to constant torture, both mentally and physically, by her husband, husband's brother and other family members. Besides, her parents have also denied their love and affection and refused to give her shelter. She was got admitted in the Central Institute of Psychiatry, Kanko, by her husband with a view to create evidence that she was a mentally deranged lady, though in fact she was not. She remained in the said institute for a considerable time as in in-patient. After discharge from the hospital, no anxiety was shown by her husband to bring her back. At last it was State's Human Rights Protection Cell which extended its helping hand to the prosecutrix and brought her from the said institute and lodged in 'basundhara'. Narrating a series of incidents of torture meted out to her, she lodged a written complaint to the D. l. G. of Police, Central Range, Cuttack, Annexure-5. Upon the said complaint a case under Sections 498-A, 307, 323 and 506, IPC and Section 4 of the Dowry Prohibition Act was registered and investigation commenced. It is stated that in the said case the prosecutrix's husband and husband's relations who were arrayed as accused, have been released on bail either under Section 438 or 439, Cr. P. C. When the matter stood thus, the second incident which is the subject-matter of the present proceeding occurred. It is stated that in the said case the prosecutrix's husband and husband's relations who were arrayed as accused, have been released on bail either under Section 438 or 439, Cr. P. C. When the matter stood thus, the second incident which is the subject-matter of the present proceeding occurred. It is the case of the prosecution that on 11-7-97 at about 2 P. M. the prosecutrix received a telephone call from her Advocate Pitambar Acharya who informed him that she should speak to the petitioner over phone. Thereupon she contacted the petitioner who asked her as to why she was not keeping touch with him and so saying he called her to his official residence for a discussion. Since she has been given shelter in 'besundhara', she sought advice from its Secretary who told her that since the situation appears to be fishy, she should take somebody with her. Accordingly, being accompanied by a staff of 'basundhara' she went to the petitioner's official residence where she, on the request of the petitioner, took her lunch. Thereafter being called, she went inside his bed-room where in course of conversation he outraged her modesty and attempted to ravish her. In the meanwhile as somebody knocked at the door, she could be able to wriggle out of the situation. Thereupon she lodged a written report at Cantonment Police Station which on being treated as F. I. R. a case under Sections 354 and 376/511, IPC was registered. In the meantime, a number of writ petitions came to be filed both by the prosecutrix as well as some social activists making various allegations. By a common order a Division Bench of the Court directed the investigation of the criminal cases to be taken up by the Central Bureau of Investigation (for short, 'c. B. I. ' ). Pursuant to the said order, a case bearing No. R. C. 7/5/97-Cal. under Sections 354 and 376/511, IPC has been registered and investigation has been taken up. Pursuant to the said order, a case bearing No. R. C. 7/5/97-Cal. under Sections 354 and 376/511, IPC has been registered and investigation has been taken up. ( 3 ) SHRI Govind Das, learned Senior Counsel appearing for the petitioner, urged with usual fairness and sagacity that when the prosecutrix in her written report has named the petitioner to have committed the alleged crime and the said report on being treated as on F. I. R. by the C. B. I. investigation has commenced, there is reasonable apprehension that the petitioner may be arrested on accusation of having committed a non-bailable offence. He went on to argue that since the senior officials of the C. B. I. are investigating into the case, there is remote possibility of the petitioner interfering with the investigation by taking advantage of his position as Advocate General of the State. He also urged that the allegations as made in the F. I. R. are quite absurd and inherently improbable, inasmuch as at the relevant time when the Home Guard, Orderly peon and some carpenters were present in the house, it is difficult to believe that at their very presence the petitioner could dare to commit the alleged crime. Shri Das further submitted that the prosecutrix is a mentally deranged lady as reported by the Central Institute of Psychiatry, Kanke, and her behaviour is indicative of Paranoid make-up of personality. The report also reveals that she is grandiose in her talk, that she can do anything and every thing and even she can go to the extent of killing her husband and destroying his family. Referring to the F. I. R. , Annexure-5 where the prosecutrix has alleged to have been sexually molested by her nephew at the instance of her husband, Shri Das contended that no sensible man could ever believe that such an incident could ever have happened. This is indicative of her behaviour and character that she can go to any extent of making false and frivolous accusations. This is indicative of her behaviour and character that she can go to any extent of making false and frivolous accusations. ( 4 ) SHRI Sanjit Mohanty, learned counsel for C. B. I. , in his usual politeness submitted that pursuant to the order of the Division Bench, investigation has been taken up by the C. B. I. and within short time there has been a considerable progress in the investigation and from the materials so far collected a prima facie case of attempt to rape has been made out against the petitioner. Therefore, keeping in view the scope of power of the Court under Section 438, Cr. P. C. coupled with the legislative intention behind such provision and the Constitution Bench decision of the apex Court in the case of Gurbaksh Singh Sibia v. State of Punjab, AIR 1980 SC 1632 : (1980 Cri LJ 1125) and subsequent Three-Judge Bench decision in the case of Poker Ram v. State of Rajasthan, AIR 1985 SC 969 : (1985 Cri LJ 1175), the Court should be loathe to exercise discretion and grant anticipatory bail to the petitioner. He further contended that anticipatory bail being extraordinary in character, can be granted only when it could be shown from the attendant circumstances that prosecution has been launched with mala fide intention. In the present case it cannot be said by any stretch of imagination that the prosecutrix, a distressed lady, has falsely implicated the petitioner with any mala fide intention. Alternatively Shri Mohanty submitted that if the Court grants anticipatory bail to the petitioner, it should be for a limited duration, leaving the whole matter to be considered by the regular Court, in view of what has been ruled by the Supreme Court in the case of Salauddin Abdulsamed Shaikh v. State of Maharashtra, AIR 1996 SC 1042 : 1996 Cri LJ 1368 ). ( 5 ) SHRI Debasis Pande, learned counsel for the prosecutrix, strenuously contended that the petitioner who holds a high office under the State Government has misused his official status and taking advantage of the helplessness of the prosecutrix, a destitute, has not only dishonoured her but also the whole womanhood and in view of the seriousness of the accusation. Court should be slow to exercise discretion in his favour and grant him anticipatory bail. Court should be slow to exercise discretion in his favour and grant him anticipatory bail. He further urged that the report of the doctor regarding the mental condition of the prosecutrix on which the petitioner heavily relies upon cannot be accepted on its face value when its correctness is yet to be judged on appreciation of evidence during trial. ( 6 ) SECTION 430, Cr. P. C. under the caption, "direction for grant of bail to person appre-hending arrest" was not earlier in the Code of Criminal Procedure, 1898. It came to be added to the new Code of 1973. Prior to that there was divergence of judicial opinion on the question whether or not a Court had power to pass an order for anticipatory bail. This controversy, however, came to be resolved by introducing a specific provision in Section 439 to the new Code. The legislative intention behind such provision can be had from the 41st Report of the Law Commission which pointed out :". . . 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 pendency is showing signs of steady increase. Apart from false cases, where there are resonable 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. " ( 7 ) THE aforesaid recommendation was accepted by the Central Government and clause 447 was introduced in the draft Bill of the new Code conferring express power on the High Court or Court of Session to grant 'anticipatory bail'. The Law Commission in paragraph 31 of its 48th Report made the following comments :"the Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendation 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. This is substantially in accordance with the recommendation 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. x x x x" ( 8 ) CLAUSE 447 became Section 438 when the Bill was enacted into new Code. The relevant part of the said section which is necessary for the purpose is extracted hereunder:" (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. x x x x x" ( 9 ) A cursory look at the aforesaid provision would show that anticipatory bail can be sought where there is apprehension of arrest on the accusation that the applicant has committed a non-bailable offence. For exercising power to grant anticipatory bail the Legislature had conferred wide discretion on the High Court and the Court of Session, because these are higher Courts manned by experienced persons and they are expected to exercise discretion judiciously and not according to whims and caprice. Section 438 is a procedural provision which is concerned with the personal liberty of the individual who is entitled to the benefit of presumption of innocence, since he is not, on date of application for anticipatory bail, convicted of the offence in respect of which he seeks bail. A person seeking anticipatory bail is still a free man entitled to presumption of innocence. Keeping this basic principle in view, the Court when approached for anticipatory bail should consider whether in the facts and circumstances of the case, judicial discretion should be exercised in favour of the applicant and he should be granted anticipatory bail. Prior to the Constitution Bench decision in Gurbaksh Singh (supra), the question for grant of anticipatory bail came to be considered in Balchand Jain v. State of Madhya Pradesh, AIR 1977 SC 366 : (1977 Cri LJ 225 ). In that case it was observed that power of granting anticipatory bail is somewhat extraordinary in character and it is only in exceptional cases such power is to be exercised. In that case it was observed that power of granting anticipatory bail is somewhat extraordinary in character and it is only in exceptional cases such power is to be exercised. Fazal Ali, J. , who delivered separate judgment of concurrence, observed that an order for anticipatory bail is one extraordinary remedy available in special cases. The Constitution Bench in Gurbaksh Singh while agreeing with respect that the power conferred under Section 438 is of extraordinary character in the sense that it is not ordinarily resorted to like the power conferred by Sections 437 and 439, held that it should be exercised with due care and circumspection, but beyond that it is not possible to agree with the observations made in the said judgment. The Bench further observed that if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides. In view of this authoritative pronouncement, submission of Sri Mohanty that the petitioner having failed to show that the accusation made against him is actuated by mala fides, prayer for anticipatory bail cannot be granted, does not merit consideration. ( 10 ) SHRI Mohanty brought to my notice paragraph 31 of the judgment in Gurbaksh Singh (supra) as to what should weigh with the mind of the Court while dealing with an application for anticipatory bail and urged that all the conditions having been satisfied by the prosecution, petitioner's prayer for anticipatory bail deserves to be rejected in limine. The relevant observation of the Court in that regard is extracted hereunder :"x x x There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the Court while granting or rejecting anticipatory bail. The relevant observation of the Court in that regard is extracted hereunder :"x x x There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the Court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and 'the larger interest of the public or the State' are some of the considerations which the Court has to keep in mind while deciding an application for anticipatory bail. x x x x"the aforesaid view of the Constitution Bench has been reiterated in Pokar Ram (supra ). ( 11 ) KEEPING in view the relevant con-siderations for grant or refusal of anticipatory bail, let me have a bird's eye view on the accusations made in the F. I. R. It is alleged that at the time of incident, the petitioner pounced upon the prosecutrix, squeezed her breast and kissed her forcibly all over her face and neck and attempted to rape her, but she narrowly escaped as she was wearing a Salwar-Kurta which was tied very tightly. According to Shri Mohanty, this being a serious accusation and one of the conditions as laid down by the Supreme Court having been satisfied, petitioner's prayer for anticipatory bail deserves no consideration. Controvering this submission Shri Das would contend that the aforesaid allegation even if taken on its face value, at best makes out an offence under Section 354 and not Section 376/511, IPC. This submission of Shri Das may not be brushed aside lightly. I would have gone through the details of the case diary to appreciate the contentions raised at the Bar if it was an application for bail under Section 439, Cr. P. C. But this being an application for anticipatory bail and there having been a considerable progress in the investigation in which most of the material witnesses have been examined, as submitted by Shri Mohanty, I feel it appropriate to leave the whole matter to be considered by the regular Court on an application for bail being moved by the petitioner. For arriving at such conclusion, I derive support from the decision of the Supreme Court in Salauddin Abdulsamad Shaikh (supra ). For arriving at such conclusion, I derive support from the decision of the Supreme Court in Salauddin Abdulsamad Shaikh (supra ). In the said case, the petitioner was granted bail for an interim period and was directed to move a regular bail application before the Court which was in seisin of the criminal case. It is against that order the petitioner moved the Supreme Court. While agreeing with the view of the High Court, their Lordships observed :"x x x x Anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the regular Court, which is to try the offender is sought to be by-passed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry directed the petitioner to move the regular Court for bail. That is the correct procedure to follow because it must be realised that when the Court of Session or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature of evidence against the alleged offender. It is, therefore, necessary that such anticipatory bail orders should be of a limited direction only and ordinarily on the expiry of the duration or extended duration the Court granting anticipatory bail should leave it to the regular Court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted. x x x" (Emphasis supplied) ( 12 ) IN the opinion of their Lordships, the Court granting anticipatory bail should not substitute itself for the original Court and the correct procedure is only to grant anticipatory bail for a limited duration. This view has been further clarified by the Apex Court in K. L. Verma v. State, 1996 (7) Scale (SP) 20. In the said case their Lordships emphasised that the anticipatory bail sought for by the accused when the investigation has made progress cannot enure till end of that trial and it must be of limited duration. This view has been further clarified by the Apex Court in K. L. Verma v. State, 1996 (7) Scale (SP) 20. In the said case their Lordships emphasised that the anticipatory bail sought for by the accused when the investigation has made progress cannot enure till end of that trial and it must be of limited duration. The relevant observation made in the said case is extracted hereunder :"x x x This Court further observed that anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the regular Court, which is to try the offender, is sought to be bypassed. It was, therefore, pointed out that it was necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the Court granting anticipatory bail should leave it to the regular Court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted. By this, what the Court desired to convey was that an order of anticipatory bail does not enure till the end of trial but it must be of limited duration as the regular Court cannot be bypassed. The limited duration must be determined having regard to the facts of the case and the need to give the accused sufficient time to move the regular Court for bail and to give the regular Court sufficient time to determine the bail application. In other words, till the bail application is disposed of one way or the other the Court may allow the accused to remain on anticipatory bail. To put it differently, anticipatory bail may be granted for a duration which may extend to the date on which the bail application is disposed of or even a few days thereafter to enable the accused persons to move the higher Court, if they so desire. x x x" (Emphasis supplied) ( 13 ) IN view of the authoritative pronouncements of the Apex Court referred to above, I am not inclined to grant anticipatory bail to the petitioner till end of the trial. I, however, feel that it will be just and proper if his such prayer is allowed for a limited duration. x x x" (Emphasis supplied) ( 13 ) IN view of the authoritative pronouncements of the Apex Court referred to above, I am not inclined to grant anticipatory bail to the petitioner till end of the trial. I, however, feel that it will be just and proper if his such prayer is allowed for a limited duration. Accordingly, it is ordered that in the event of arrest of the petitioner in case No. R. C. 7/5/97-Cal. , the investigating/arresting officer of the C. B. I. shall release him till 25th September, 1997, on his furnishing a bond of Rs. 20,000/- with one surety for the like amount, within which period he may apply for bail to the regular Court in seisin of the criminal case. Since a time limit has been fixed, the petitioner may apply for bail as early as possible so that the Court concerned will get sufficient time to hear the parties and pass orders in accordance with law within that period, uninfluenced by any observation made in this order. In case bail application is filed, the Investigating Officer of the C. B. I. shall submit case diary to the Court on the date of hearing of the application. If the petitioner's prayer for bail is rejected, then in order to enable him to move the higher Court, the period of anticipatory bail shall stand extended till 7th October, 1997. ( 14 ) WITH the above observations the Criminal Misc. Case is disposed of. ( 15 ) BEFORE parting with the case, I would like to observe that there has been a calculated attempt to impede and undermine the administration of justice. Certain people with banners and placards in their hands assembled in front of the Court and shouted slogans to the hearing of the Hon'ble Judges that the petitioner should be arrested and that he should not be released. Even certain section of the media did not hesitate to comment on the Court's performance during pendency of the proceedings. Now-a-days a tendency has grown to overawe the judiciary as well as the investigating agency. Efforts should be made by all right thinking people to bring it to a halt, else justice will be casualty. Judiciary in our country is one of the pillars of the Constitution. It needs no mention that people repose trust on our judicial system. Now-a-days a tendency has grown to overawe the judiciary as well as the investigating agency. Efforts should be made by all right thinking people to bring it to a halt, else justice will be casualty. Judiciary in our country is one of the pillars of the Constitution. It needs no mention that people repose trust on our judicial system. Every Judge on his appointment discards all politics and prejudices. One need not have any fear in his mind. In the words of the great Jurist Lord Denning, "some one must be trusted. Let it be the Judges". Petition allowed. .