JUDGMENT Virender Singh, J. - Jaswinder Singh Jaryal and his mother Nirmal Kumari, the petitioners herein are seeking anticipatory bail in a case FIR No. 18 dated 5.2.2003 under sections 498-A and 406 Indian Penal Code registered in Police Station Mahilpur, District Hoshiarpur. It may be mentioned here that the co-accused of the present petitioners namely Poonam Kumari, Vijay Rana, Sushil Kumari and Davinder Singh are on regular bail. 2. Jaswinder Singh is the husband of Tejinder Kaur complainant whereas Nirmal Kumari is the mother-in-law. I need not go into detailed discussion so far as the facts of the present case are concerned. The only controversy before this Court is as to whether the present application under section 438 Criminal Procedure Code in the present form in maintainable or not. 3. The flash back of the present case is that Jaswinder Singh petitioner No. 1 initially moved an application for anticipatory bail before the Sessions Court Hoshiarpur in which notice was issued to the State vide Annexure P/2. The said application was then disposed of vide Annexure P/3 order dated 24.3.2003. The said order read as under :- "Heard. The offences under section 498-A/406 of Indian Penal Code are exclusively triable by the court of Ilaqa Magistrate. The anticipatory bail granted to the accused- applicant is, therefore, extended till 7.4.03. The accused-applicant is at liberty to move the court of Ilaqa Magistrate for the grant of regular bail. The moment the bail application is disposed of this order shall cease to operate. The Court of Ilaqa Magistrate should dispose of the bail application uninfluenced by any of the observation made in this order. File be consigned." 4. On the same day another order Annexure P/4 was also passed in the same terms on a separate application moved by petitioner No. 2 and Poonam Kumari, her daughter. Thereafter the present two petitioners alongwith Poonam Kumari and one Vijay Rana moved an application for regular bail before the learned Judicial Magistrate Ist Class, Hoshiarpur. It is worth mentioning here that a separate application was also moved by their co-accused namely, Sushil Kumari and Davinder Singh for the same relief and both the applications for regular bail were decided vide Annexure P/5 dated 29.3.2003 in which Poonam Kumari, Vijaya Rana, Sushil Kumari and Davinder Singh were ordered to be released on regular bail whereas the bail application of the present petitioners was dismissed. The present petitioners then moved another application for regular bail before Sessions Judge, Hoshiarpur and the same has been dismissed vide Annexure P/6 dated 8.4.03. Before proceeding further I may mention here that in the heading of the typed copy of Annexure P/6, the line "application for regular bail" is missing whereas in the certified copy it is mentioned. It appears that it skipped the notice of the Registry and the concerned official just had a cursory glance on the typed copy (Annexure P/6) and put up the case for disposal. Otherwise, the Registry might have raised the objection on the maintainability of the present petition under section 438 Criminal Procedure Code Any how, I do not intend to comment further on it. 5. The learned Additional Sessions Judge while disposing of the application of the petitioners observed as under :- "Copy of the order dated 29.3.2003 passed by the court of Shri KC Gupta, PCS, JMIC, Hoshiarpur shows that the accused-applicants Nirmal Kumari and Jaswinder Singh were present when the bail application was disposed of. The bail application moved by the accused-applicants Nirmal Kumari and Jaswinder SIngh was dismissed. The order was passed in the presence of APP for the State, Sh. Karnail Singh, I.O. Shri Naveen Jairath, Adv. counsel for the accused- applicants Nirmal Kumari, Poonam, Jaswinder Singh and Vijay Rana and Shri Vishal Kumar, Adv. counsel for the accused-applicant Sushil Kumari and Davinder Singh. After the dismissal of the bail application, the accused- applicants Nirmal Kumari or Jaswinder Singh were not taken into custody by the court of Shri KC Gupta, JMIC, Hoshiarpur, Shri Karnail Singh, Investigating Officer of this case was also present but he has also taken no pain to take into custody the accused-applicants. The accused-applicants cannot be deemed to be in custody. The bail application is, therefore, not maintainable under Section 439 Criminal Procedure Code and the same is hereby dismissed. Copy of the order be sent to the court of Shri KC Gupta, PCS, JMIC, Hoshiarpur with the observation that in future such a lapse has come to the notice of this Court, then serious view would be taken in the matter. File be consigned." 6. I have heard Mr. P.S. Hundal, learned counsel for the petitioners at the motion stage. Mr. File be consigned." 6. I have heard Mr. P.S. Hundal, learned counsel for the petitioners at the motion stage. Mr. Hundal with great vehemence has argued that the present application on behalf of the petitioners may be treated as an application under Section 438 Criminal Procedure Code inspite of the fact that their application for regular bail stands dismissed vide order dated 29.3.2003 Annexure P/5 passed by Judicial Magistrate Ist Class, for a very simple reason that the petitioners were not taken into custody on 29.3.2003 and thereafter also by the concerned prosecution agency and as such they are at liberty to make out fresh grounds for the purpose of seeking the relief envisaged under section 438 Criminal Procedure Code Developing his arguments, Mr. Hundal further contended that even otherwise, the order passed by learned Additional Sessions Judge, Hoshiarpur Annexure P/3 on 24.3.2003 in favour of Jaswinder Singh or Annexure P/4 in favour of Nirmal Kumari is an illegal order and is not binding on the present petitioners at all because the learned Additional Sessions Judge while disposing of the application under section 438 Criminal Procedure Code could not impose any condition beyond the scope of section 438(2) Criminal Procedure Code He, thus, contends that even if the learned Additional Sessions Judge has granted the interim relief to the petitioners upto 7.4.2003 with the observation that they would move an application for a regular bail, the said order is non est. In support of his contentions, the learned counsel has relied upon a landmark judgment of Constitutional Bench of the Apex Court rendered in Gurbaksh Singh Sibbia etc. v. The State of Punjab, AIR 1980 Supreme Court 1632 and has drawn my attention to para No. 26 of the said judgment. He has further relied upon another judgment of Goa High Court, rendered in G.V. Prabhu of Ponda and another v. The State, 1975 Crl. L.J. 1339. He then relies upon a latest judgment of Delhi High Court, rendered in M.R. Narayanan v. State, 2003(2) RCR (Criminal) 81. 7. I have given my thoughtful consideration to the argument advanced by Mr. Hundal have also gone through minutely the records of the present case. The arguments advanced by the learned counsel for the petitioners have no force at all. 8. 7. I have given my thoughtful consideration to the argument advanced by Mr. Hundal have also gone through minutely the records of the present case. The arguments advanced by the learned counsel for the petitioners have no force at all. 8. No doubt in the present case the petitioners were given some interim relief, by the learned Additional Sessions Judge, upto 7.4.2003 enabling them to apply for regular bail. Admittedly, the application for regular bail was moved by the present petitioners on 27.3.2003 and the same was disposed of on 29.3.2003, a week prior to the outer limit given to the petitioners for knocking at the doors of the concerned Court for regular bail. In my considered view once the regular bail of the petitioners was declined on 29.3.2003, the effect of order dated 24.3.2003 ceased then and there. The petitioners should have been taken in custody there and then only and the Court was bound to pass a specific order in this respect. Surprisingly the said order is missing as is clear from the impugned order Annexure P/6. The order dated 29.3.2003 was passed in the presence of APP for the State; so much so that Karnail Singh, Investigating Officer of the present case was also present. However, the investigating officer did not take any pain to take the petitioners in custody. In my view it is a gross irregularity committed by the investigating officer which certainly amounts to dereliction of duty. 9. It is worth mentioning here that the controversy raised before the Sessions Court was whether the petitioners should be deemed to be in custody or not, for the purpose of regular bail under section 439 Cr.C.P. and the learned Additional Sessions Judge did not agree to it. The petitioners in the present petition have thus taken a somersault and are seeking the relief of anticipatory bail. The petitioners are blowing hot and cold in the same breath. Their purpose is to get the relief in one way or the other. I am of the considered view that the petitioner are not at all entitled to the relief sought for in the present petition as the same is not at all maintainable in the present form, once the application of the petitioners for regular bail stands dismissed. 10. To be fair to Mr. I am of the considered view that the petitioner are not at all entitled to the relief sought for in the present petition as the same is not at all maintainable in the present form, once the application of the petitioners for regular bail stands dismissed. 10. To be fair to Mr. Hundal, I would like to deal with the present case in the light of the judgment relied upon by him. Para No. 26 of Gurbaksh Singh Sibbias case (supra) may be read with advantage :- "26. We find a great deal of substance in Mr. Tarkundes submission that since denial of bail amounts to deprivation of personal liberty, the Court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi, (1978) 1 SCC 248 : (AIR 1978 SC 597) that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form of which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein." 11. In Gurbaksh Singh Sibbias case (supra) their Lordships have discussed the provisions of section 438 Criminal Procedure Code in the light of Article 21 of the Constitution of India, concerning personal liberty of the individual. Mr. In Gurbaksh Singh Sibbias case (supra) their Lordships have discussed the provisions of section 438 Criminal Procedure Code in the light of Article 21 of the Constitution of India, concerning personal liberty of the individual. Mr. Hundal perhaps wants to derive some benefit from the said judgment but I am afraid if in the present set of circumstances, the ratio of Gurbaksh Singh Sibbias case (supra) as contained in para No. 26 would be applicable. 12. The judgement in G.V. Prabhus case (supra) is also not applicable to the present case because in the said case accused petitioners were directed to be released after a period of five days from custody on certain conditions. The extract of the order was reproduced as under :- "The application is allowed and the accused/applicants if arrested, are directed to be released after a period of 5 days from custody under the following conditions." 13. It was in that context that it was observed by the Single Bench of Goa High Court that the only power given to the Court was to pass an order directing that the applicant for anticipatory bail be released in the event of his being arrested or it can be dismissed and no other order can be passed. In the present case, the learned Additional Sessions Judge vide order dated 24.3.2003 observed that the petitioners would apply for regular bail. It can be well presumed that the learned Additional Sessions Judge was not inclined to grant anticipatory bail. No doubt a specific order of dismissal of the application for anticipatory bail was not passed but it has been observed in so many words in Annexures P/3 and P/4 respectively that the moment the application for regular bail is disposed of, the order shall cease to operate. In my view legally it amounts to rejection. 14. The judgment rendered in M.R. Narayanans case (supra) was in regard to certain harsh conditions imposed by the Learned Sessions Court while deciding the application. In my view legally it amounts to rejection. 14. The judgment rendered in M.R. Narayanans case (supra) was in regard to certain harsh conditions imposed by the Learned Sessions Court while deciding the application. The conditions were that the accused-applicant would deposit certain amount before the Court and in that context the Division Bench of the Delhi High Court while deciding the matter held that the purpose of imposing conditions which are envisaged under sub-section (2) of Section 438 Criminal Procedure Code cannot be such, the object of which should be to recover the alleged amount because in that case the allegations were of cheating of huge amount. In that context, the conditions as imposed under section 438 Criminal Procedure Code were discussed. The petitioners cannot, in my view, be benefited from the said judgment. 15. As a sequel to the above said discussion and keeping in view the peculiar facts of the present case, the present petition is hereby dismissed being not maintainable in the present form under section 438 Criminal Procedure Code The petitioners should surrender before the concerned Court at once to adopt the other course open to them according to law. Petition dismissed.