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2005 DIGILAW 542 (KER)

Jyothish v. State of Kerala

2005-08-12

R.BASANT

body2005
Judgment :- R. Basant, J. Serious questions concerning the nature of directions which a court under S. 438 of the Cr.P.C. can and should issue and the consequences which follow the issue of such directions are raised in this Crl.M.C. 2. Facts are simple; but strange. The petitioner now faces allegations, inter alia, under Ss. 452, 324 and 308 of the I.P.C. The F.I.R. was registered on 4.4.2005. In the it is alleged by the de facto complainant that two named individuals, the brothers of his daughter-in-law had allegedly committed the offences punishable under Ss.452, 324 and 308 read with S.34 of the I.P.C. against him. Prior animosity on account of family disputes is the alleged motive. In the course of investigation in that crime, the Investigating Officer appears to have sailed to the conclusion that not those two persons, but the petitioner herein — a neighbour, had allegedly committed the offence. Contrary to the earlier specific allegation in the F.I.R., it was alleged that a masked individual had allegedly inflicted the injuries including grievous injury on the de facto complainant. An allegation was raised that the petitioner was the said miscreant. According to the petitioner, the said allegation is totally false. The relatives having settled the disputes and the offences alleged being non-compoundable, the de facto complainant was only attempting and the police was only obliging the de facto complainant to absolve the relatives from the trauma of criminal prosecution. In that attempt, false allegations were raised-against the petitioner, it is contended by the petitioner. 3. The petitioner, in these circumstances, came to this Court with B.A. No. 2503/05 for issue of directions under S. 438 of the Cr.P.C. The petition was heard and allowed by another Bench of this Court. I think it necessary to extract the entire order dated 28-4-2005 passed by my learned Brother which reads as follows: "In this petition filed under S.438 Cr.P.C. the petitioner who is the accused in Crime No.158/05 of Koratty Police Station for offences punishable under Ss.452, 324 and 308 I.P.C. seeks anticipatory bail. 2. Heard the learned Public Prosecutor and also perused the case diary file from which I am convinced that this is a case in which the petitioner has reasonable apprehension of arrest within the meaning of S.438 Cr.P.C. 3. 2. Heard the learned Public Prosecutor and also perused the case diary file from which I am convinced that this is a case in which the petitioner has reasonable apprehension of arrest within the meaning of S.438 Cr.P.C. 3. Accordingly, a direction is issued to the Sub Inspector of Police, Koratty Police Station, to release the petitioner on bail for a period of one month in the event of his arrest in connection with the above crime on the petitioner executing a bond for Rs.10,000 with two solvent sureties each for the like amount to the satisfaction of the Sub Inspector of Police, Koratty Police Station, and subject to the following conditions: (i) The petitioner shall make himself available for interrogation as and when required by the police. (ii) The petitioner shall not influence or intimidate the prosecution witnesses. (iii) The petitioner shall not commit any offence while on bail." (emphasis supplied) 4. Within a period of one month the petitioner appeared before the police, was arrested and released on bail in terms of the order. Investigation continued. The final report has now been filed. Allegations have been made in the final report that the petitioner has committed the offences punishable under Ss.453, 324 and 308 of the I.P.C. Cognizance has already been taken, it is submitted. 5. The petitioner did not seek regular bail under S.437/439 of the Cr.P.C. The charge-sheet having been filed, the petitioner now wants to appear before the learned Magistrate. The petitioner was threatened by the Investigating Officer that he, having not obtained regular hail under S. 437/439 of the Cr.P.C. within a period of one month, shall now be arrested. He also apprehends that the learned Magistrate may issue non-bailable warrant of arrest to procure the presence of the petitioner. His further apprehension is that notwithstanding the grant of anticipatory bail to him by this Court earlier, the learned Magistrate may still remand him to custody if and when he appears before the learned Magistrate in response to coercive process issued by the learned Magistrate as the offence is triable exclusively by a Court of Session. 6. He has hence filed Crl.M.C.No.1547/05 to direct the Investigating Officer not to arrest the petitioner again in connection with the same crime. 6. He has hence filed Crl.M.C.No.1547/05 to direct the Investigating Officer not to arrest the petitioner again in connection with the same crime. Later, after discussions at the Bar, by way of abundant caution, the petitioner has filed BA.No.4550/05 requesting this Court to issue fresh directions under S.438 of the Cr.P.C. in his favour. Both Crl.M.C.No.1547/05 and B.A.No.4550/05 have been taken up for hearing together. The learned counsel for the petitioner and the learned Public Prosecutor have advanced their arguments. 7. Sri Sunny Mathew, the learned counsel for the petitioner contends that normally, S.438 of the Cr.P.C. is not controlled or limited by S.437/439 of the Cr.P.C. If the Court of Sessions or the High Court grants anticipatory bail without any specific direction that the petitioner must approach the courts again under Sec.437/439 of the Cr.P.C., it is not necessary for the accused to seek any bail under those Sections and in such event, the mandate of S.438(3) has to be followed by the Magistrates. Except in exceptional cases where such a specific direction is issued, it is not necessary for the petitioner, who has secured an order of anticipatory bail, to approach the courts for bail again under S.437 or 439 of the Cr.P.C. The statutory provisions as well as the observations of the Constitution Bench (5 Judges Bench) of the Supreme Court in Gurbaksh Singh v. State of Punjab (AIR 1980 SC 1632) leaves no doubts on this aspect. The decisions in Salauddin. Abdulsamad Shaikh v. State of Maharashtra (AIR 1996 SC 1042); K.L. Verma v. State & Anr. ((1998) 9 SCC 348); Nirmal Jeet Kaur v. State of M.P. (2004 (3) KLT 391 (SC) = (2004) 7 SCC 558); Sunita Devi v. State of Bihar (2005 (1) KLT 748 (SC) = (2005) 1 SCC 608) and Adri Dharan Das v. State of W.B. ((2005) SCC (Cri.) 933 = 2005 (2) KLT SN 22 (C.No.27) (SC) do not and cannot lay down any contrary position of law. The observations of the Constitution Bench in Gurbaksh Singh State of Punjab (AIR 1980 SC 1632) as explained in Bharat Chaudhary v. State of Bihar (2003 (3) KLT 956 (SC) = (2003) 8 SCC 77) have not in any way been altered by those decisions and, in these circumstances, the conditions imposed by this Court earlier was, as understood by the petitioner, intended only to make it clear that the petitioner must appear before the Investigating Officer within a period of one month. He having so appeared and having been released on hail, there is no obligation on him, in the absence of specific directions, to appear before the learned Magistrate and seek bail again under S. 437/439 of the Cr.P.C. In these circumstances, it may be clarified that if the petitioner appears before the learned Magistrate, he must be released on bail in view of the provisions of S.438(3) of the Cr.P.C. If there be any possible confusion in the mind of the learned Magistrate arising out of the earlier directions issued by this Court, fresh directions under S.438 of the Cr.P.C. may again be issued in B.A.No.4550/05, it is prayed. 8. The learned Public Prosecutor, on the contrary, contends that the decisions from Salauddin Abdulsamad Shaikh's case till Adri Dharan Das's case which followed Gurbaksh Singh’s case make it clear that the court has no competence to grant anticipatory bail unlimited in point of time. Every order of an anticipatory bail under S.438 of the Cr.P.C. must he followed by an appropriate order granting bail under S.437/439 of the Cr.P.C. and in the absence of such an order, the petitioner is liable to be arrested and dealt with in accordance with law. In the instant case, the petitioner having not appeared before the learned Magistrate within a period of one month from 28-4-2005, the date of the order in B.A.No.2503/05, the petitioner is not covered by any order of anticipatory bail at the moment and he therefore is liable to be arrested by the Investigating Officer or in execution of a non-bailable warrant issued by the learned Magistrate after taking cognizance. 9. Regarding B.A.No.4550/05, it is contended that there is absolutely no justification in the renewed prayer for grant of anticipatory bail the petitioner having not taken advantage of the earlier order dated 28-4-2005. 10. A look at the relevant provisions appear to be absolutely necessary. 9. Regarding B.A.No.4550/05, it is contended that there is absolutely no justification in the renewed prayer for grant of anticipatory bail the petitioner having not taken advantage of the earlier order dated 28-4-2005. 10. A look at the relevant provisions appear to be absolutely necessary. Ss.438, 437 and 439 as also S.204 of the Cr. P.C. are extracted below: "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 anon-bailable offence, he may apply to the High Court or the Court of Sessions for 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 Sessions 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 thinks 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 S.437, as if the hail 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 he 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).” (emphasis supplied) "437. When bail may be taken in case of non-bailable offence.—(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a Court other than the High Court or Court of Sessions, he may be released on bail, but-- (i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life: (ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence: Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm: Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason: Provided also that the mere fact that an accused person may he required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court. (2.) If it appears to such officer or Court at any stage of the investigation, inquiry or trial as the case may he, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall subject to the provisions of S.446A and pending such inquiry, be released on bail, or, at the discretion of such officer or Court on the execution by him of a bond without sureties for his appearance as hereinafter provided. (3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) of abetment of, or conspiracy or attempt to commit, any such offence, is released on hail under sub-section (1) the Court may impose any condition which the Court considers necessary (a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or (b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or (c) otherwise in the interests of justice. (4) An officer or a Court releasing any person on bail under sub-section (1), or sub-s. (2), shall record in writing his or its reasons for so doing. (5) Any Court which has released a person on bail under sub-s.(1), or sub-s. (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. (6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs. (7) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered." "439. Special powers of High Court or Court of Session regarding bail.-- (1) A High Court or Court of Session may direct-- (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of S.437. Special powers of High Court or Court of Session regarding bail.-- (1) A High Court or Court of Session may direct-- (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of S.437. may impose any condition which it considers necessary for the purposes mentioned in that sub-section: (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. (2) A High Court or Court of Sessions may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody." "204. Issue of process.-- (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-- (a) a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain lime before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall he accompanied by a copy of such complaint. (4) When by any law for the time being in force any process fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. (5) Nothing in this section shall he deemed to affect the provisions of S.87." 11. Ss. (5) Nothing in this section shall he deemed to affect the provisions of S.87." 11. Ss. 436, 437 and 439 of the Cr.P.C. deal with the question of grant of regular bail. It is unnecessary to go into the details as to what the expressions `bail', 'arrest' and `custody' signify. The expressions are of common juristic import and the concepts, though not defined in the Code, are by now well-settled. 12. The Cr.P.C. classifies the offences into bailable and non-bailable offences. S.2(a) of the Cr.P.C. defines the concepts of bailable and non-bailable offences. The classification is shown in Column No.5 of the First Schedule to the Cr.P.C. Special laws (i.e., the other laws for the time being in force) do also in many cases indicate whether the offences thereunder are bailable or non-bailable. In the absence of such specifications, the question has to be decided by reference to the First Schedule of the Code. 13. We are not concerned with bailable offences. The grant of bail in such offences is covered by S.436 of the Cr.P.C. A person accused of a non-bailable offence may find himself in custody of the Police Officer or a court when he is arrested and produced or when he voluntarily appears/surrenders before such officer or court. S.437 of the Cr.P.C. deals with the circumstances under which bail can be granted to such a person by the police officer or the Magistrate concerned. S.439 of the Cr.P.C. deals with special provisions relating to grant of bail to persons in custody facing allegations of having committed non-bailable offences. Those are special powers of the High Court and the Court of Session regarding grant of regular bail. 14. S.438 of the Cr.P.C. carves out an exception to the normal rules relating to grant of bail. Framers of the Code in 1973, for the first time, introduced the statutory provisions relating to what is often described as anticipatory bail or pre-arrest bail, though those expressions are not employed by the legislature. But S.438 (1) extracted above. conveys an idea of the nature of powers under that statutory provision. 15. S.438 of the Cr.P.C. contemplates a pre-arrest direction to be issued by superior courts which will have post-arrest consequences. Virtually the legislature has invested superior courts with powers to convert a non-bailable offence to a bailable one subject to conditions, so far as the post-arrest right to bail is concerned. 15. S.438 of the Cr.P.C. contemplates a pre-arrest direction to be issued by superior courts which will have post-arrest consequences. Virtually the legislature has invested superior courts with powers to convert a non-bailable offence to a bailable one subject to conditions, so far as the post-arrest right to bail is concerned. The identical expression "shall be released on bail" appearing in S.436 and S.438(3) of the Cr.P.C. reveals that identical post-arrest right to bail is available in favour of a person accused of a bailable offence and also in favour of one, accused of a non-bailable offence, provided a direction under S.438(1) of the Cr.P.C. is issued in his favour subject, of course, to conditions which may be stipulated under S.438(1) and (2) of the Cr.P.C. No specific guidelines are indicated, but provision is made for issue of directions in favour of a person who has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence. In Gurbaksh Singh's case the Supreme Court did not find it necessary to enumerate the circumstances under which the extraordinary equitable discretion/power under S.438 (1) of the Cr.P.C. can or ought to be invoked. But certainly that is not to say that there is no basis or criteria on which S.438 of the Cr.P.C. can be invoked. Avoiding any unnecessary enumeration, it can certainly be said that the powers under S.438(1) of the Cr.P.C. can be invoked only in a case where the Court is satisfied that the normal procedure under S.437/439 of the Cr.P.C. is not sufficient to meet the ends of justice. The superior courts like the High Court and the Court of Sessions are assumed to be capable of identifying such a case in which, to render justice, the normal provisions under Ss.437 and 439 are not sufficient. 16. It is by now trite that there must be satisfactory and, may, compelling reasons to justify the invocation of the extraordinary discretion under S.438 of the Cr.P.C. Exceptional reasons must certainly be there to induce the requisite satisfaction in the mind of the Court that, not the normal provisions under S.437/439, but invocation of the special provisions under S.438 is necessary to meet the ends of justice. Without intending to be exhaustive it can be stated generally that such powers can be invoked by a Court when it is satisfied that the powers of arrest available under the Code are about to be invoked unnecessarily with mala fide, oblique or vexatious intent. Such powers can also be invoked when the Court is satisfied that invocation of such powers of arrest, though without mala fides and oblique motives, is likely to result in undeserved hardship and prejudice of an exceptional variety. Such powers are to be invoked only in exceptional cases when the superior courts in their discretion, judgment and wisdom are satisfied that such extraordinary equitable discretion deserves to be invoked. At any rate, such powers are not to be invoked, as a matter of course, and the superior courts shall and are expected to invoke such powers only where the ends of justice compellingly demand resort to such course. 17. Myriad may the fact situations in which the superior courts are requested to invoke such powers. Classic examples can readily be cited. Where a thirst for political vendetta prompts either the complainant or the political executive to raise vexatious allegations against their opponents and subject them to the trauma of arrest and detention, the superior courts may consider invocation of such powers. Blatant abuse of the powers of arrest by individual police officials actuated with mala fide and oblique motives can be cited as another instance where such powers can he invoked. Apprehension of physical torture by the police and the need for protection till the accused person is able to seek the orders of the regular court competent to consider the grant of bail under 5.437 of the Cr.P.C. could be another instance. The possibility of the police not registering any F.I.R. and postponing registration of the F.I.R. and securing arrest in such crime before the accused gets an opportunity to take recourse to ordinary law can be another instance. Serious ailment of the person apprehending arrest or some close relative in death bed can be cited as examples justifying grant of temporary protection under S.438 of the Cr.P.C. in the interests of justice. This Court has, on many occasions, invoked such powers subject to conditions to avoid the consequence of arrest and incarceration of students who have to write examinations in the immediately succeeding days. This Court has, on many occasions, invoked such powers subject to conditions to avoid the consequence of arrest and incarceration of students who have to write examinations in the immediately succeeding days. Suffice it to say that it is impossible to exhaustively enumerate the circumstances. But the very nature, width and amplitude of the discretion under S.438 of the Cr. P.C. must inform the Courts of the care, caution and circumspection with which alone such powers can be invoked. In any such case where the conscience of the superior court is satisfied that in the interests of justice. post-arrest detention and incarceration should be avoided, such powers can be invoked. 18. We are in this case concerned more about the consequences of a direction issued under S.438(1) of the Cr.P.C. It is only in that context that I have adverted to the circumstances under which the superior courts would choose to invoke such powers. What consequences shall ensue if the Courts have already been persuaded to invoke such extraordinary equitable direction? This is the question. Undoubtedly, S.438 (1) read along with S.438 (2) of the Cr.P.C. indicates that a direction under S.438(1) can be subject to any conditions including the ones referred to in S.438(2) of the Cr. P.C. The conditions enumerated in Clause (2) are only indicative in character and not exhaustive at all. Such enumeration is without prejudice to the generality of the power to impose appropriate conditions under S.438(1). In these circumstances, there can he no doubt that the superior courts can impose any condition under S.438 of the Cr. P.C. which appears to them to he just and necessary in the interests of justice. The freedom and liberty of the Individual and the investigational powers and duties of the police have to be balanced and harmonised by any court while considering invocation of the powers under S. 438 of the Cr. P.C. and while imposing conditions thereunder. 19. There is no dispute on the jurisdictional competence of the superior courts to impose any condition under S. 438 of the Cr.P.C. Such conditions include the condition limiting the period of operation of the order of anticipatory bail. But the crucial question is whether the superior court is obliged in all cases to impose such conditions restricting the period of operation of an order under S.438 of the Cr.P.C. 20. But the crucial question is whether the superior court is obliged in all cases to impose such conditions restricting the period of operation of an order under S.438 of the Cr.P.C. 20. The question was pointedly considered by the Constitution Bench of the Supreme Court in Gurbaksh Singh's case and in the later part of para 38 the question is answered thus: “….Should the operation of an order passed under S.438 (1) be limited in point of time? Not necessarily. The Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an F.I.R. in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of hail under 8.437 or 439 of the Code within a reasonably short period after the filing of the F.I.R. as aforesaid. But this need not be followed as an invariable rule. The normal rule should he not to limit the operation of the order in relation to a period of time.".................... (emphasis supplied) 21. The Constitution Bench thus appears to have clearly laid down what the normal rule should be though exceptions to that normal rule are not anathema to the law. An order unlimited in point of time is not the blanket order which is contemplated in Gurbakash Singh s case or other precedents. An order unlimited in point of time is the normal order under S.438 (1) Cr.P.C. it is evident beyond controversy from para 38 of Gurbaksh Singh s case extracted above. 22. Before referring to Salauddin Abdulsamad Shaikh's case and the line of subsequent decisions it will he apposite to refer to the decision in Bharat Chaudhary's case. A two Judge Bench of the Supreme Court in Bharat Chaudhary's case held that the powers under S.438 of the Cr.P.C. can be invoked even at the later stage after filing of the charge-sheet and taking of cognizance by the Court. In such a case, normally, there can be no question of limiting the operation of the order under S.438 of the Cr.P.C. to any particular period. In such a case, normally, there can be no question of limiting the operation of the order under S.438 of the Cr.P.C. to any particular period. In para 7 the Supreme Court observed as follows: "….The gravity of the offence is an important factor to be taken into consideration 'while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the courts concerned while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of a charge-sheet cannot by itself he construed as a prohibition against the grant of anticipatory bail. In our opinion, the Courts i.e., the Court of Sessions, High Court or this Court has the necessary power vested in them to grant anticipatory bail in non-bailable offences under S.438 of Cr.P.C. even when cognizance is taken or a charge-sheet is filed provided the facts of the case require the Court to do so.".......... (emphasis supplied) 23. The learned counsel for the petitioner also relies on S.438 (3) of the Cr.P.C. which speaks of the consequences of an order passed under S.438 (1) of the Cr.P.C. After the grant of the order, if the petitioner were to be arrested at any later point of time without warrant by an officer-in-charge of the police station, he has to he released on bail in terms of the order. 24. A Magistrate taking cognizance subsequently is also directed to issue only a bailable warrant against the accused even if issue of a warrant be found to be necessary under S.204 of the Cr.P.C. S.204 of the Cr.P.C. which has already been extracted above, shows that the Magistrate in his discretion can issue a warrant bailable or non-bailable, or a summons in a warrant case (arid a summons in a summons case) to procure the presence of the accused. Under S.204 (1) (b) of the Cr. P.C. the Magistrate may in his discretion issue a bailable or non-bailable warrant. But S.438 (3) of the Cr. P.C. mandates that if anticipatory bail has already been granted only a bailable warrant shall be issued. Obviously, the consequence of an order under S.438(1) of the Cr. Under S.204 (1) (b) of the Cr. P.C. the Magistrate may in his discretion issue a bailable or non-bailable warrant. But S.438 (3) of the Cr. P.C. mandates that if anticipatory bail has already been granted only a bailable warrant shall be issued. Obviously, the consequence of an order under S.438(1) of the Cr. P. C. is that the petitioner will not he arrested and detained as he ordinarily would have been (i.e., in the absence of such an order under S.438 of the Cr. P.C.) either by the Court or by the officer effecting the arrest. Thus, virtually, after an order of anticipatory bail is granted, there is no question of such accused being arrested and detained in custody as would ordinarily have been the case but for such an order. The provisions of S.438 (3) of the Cr. P.C. does in these circumstances assume crucial relevance when the consequence of an order under S.438(1) of the Cr. P.C. is considered. 25. Sri Sunny Mathew, the learned counsel for the petitioner, in these circumstances, submits that after an order of anticipatory bail is issued and the accused is arrested and released in terms of tile order, there cannot be a subsequent arrest by a police officer or by the Court by issuing a non-bailable warrant. 26. The learned Public Prosecutor, on the contrary, contends that the subsequent decisions referred above have altered the position and settled the law beyond any doubt. He first of all relies on the decision reported in Salauddin case. I extract the relevant passage below: "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 hail and on the date of its expiry directed the petitioner to move the regular Court for hail. 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. 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 he 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. It should be realised that an order of anticipatory bail could even be obtained in cases of serious nature as for example murder and, therefore, it is essential that the duration of that order should be limited and ordinarily the Court granting anticipatory hail should not substitute itself for the original court which is expected to deal with the offence. It is that Court which has then to consider whether, having regard to the material placed before it, the accused person is entitled to hail." (emphasis supplied) 27. That was a case where the Supreme Court was considering the challenge against an order passed by the High Court under S. 438(1) of the Cr.P.C. wherein the petitioner was granted anticipatory bail: but limited the period of time with a direction to appear before the Magistrate and seek bail under S.437/439 of' the Cr. P.C. The learned Public Prosecutor then submits that the Supreme Court had subsequently considered the question as to how the directions in Salauddin's case are to he understood. In K.L. Verma's case in para 3 the Supreme Court explains how the dictum in Salauddin's case has to be understood in the following words: "This Court farther observed that anticipatory hail 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. It was, therefore, pointed out that it was necessary that such anticipatory bail orders should he of a limited duration only ordinarily on the expiry of that duration or extended duration the court granting anticipatory hail 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 t he end of trial but it must be of limited duration as the regular court cannot be by-passed. 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 hail 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 hail application is disposed of or even a few days thereafter to enable the accused persons to move the higher court, if they so desire. This decision was not intended to convey that as soon as the accused persons are produced before the regular court the anticipatory bail ends even if the court is yet to decide the question of hail on merits. The decision in Salauddin's case has to he so understood." (emphasis supplied) 28. The learned Public Prosecutor submits that, in these circumstances, there can be no doubt that all orders under S.438 of the Cr.P.C. must be only of limited duration. 29. The learned Public Prosecutor then contends that the Supreme Court had occasion in three later decisions to refer to the dictum in Salauddin's case. In Nirmal Jeet Kaur's case reference is made to Salauddin's case and the dictum therein in the following words: "22. For making an application under S.439 the fundamental requirement is that the accused should be in custody. As observed in Salauddin's case the protection in terms of S.438 is for a limited duration during which the regular court has to be moved for bail. For making an application under S.439 the fundamental requirement is that the accused should be in custody. As observed in Salauddin's case the protection in terms of S.438 is for a limited duration during which the regular court has to be moved for bail. Obviously, such hail is bail in terms of S.439 of the Code, mandating the applicant to be in custody. Otherwise the distinction between orders under Ss. 438 and 439 shall be rendered meaningless and redundant. 23. If the protective umbrella of S.438 is extended beyond what was laid down in Salauddin's case the result would be clear by-passing of what is mandated in S.439 regarding custody. In other words, till the applicant avails remedies up to higher Courts, the requirements of S.439 become dead letter. No part of a statute can he rendered redundant in that manner." (emphasis supplied) 30. In Sunita Devi's case in para 20 reference is made to the dictum in Salauddin's case in the following words: "As observed in Salauddin's case the protection in terms of S.438 is for a limited duration during which the regular Court has to be moved for bail. Obviously, such hail is bail in terms of S.439 of the Code, mandating the applicant to be in custody. Otherwise, the distinction between orders under Ss. 438 and 439 shall be rendered meaningless and redundant." (emphasis supplied) Still later, in Adri Dharan Das’s case, in paras 14 and 15, the Supreme Court has again referred to the dictum in Salauddin's case in the following words: "14…. As observed in Salauddin's case the protection in terms of Section 438 is for a limited duration during which the regular Court has to be moved for bail. Obviously, such bail is bail in terms of S.439 of the Code, mandating the applicant to be in custody. Otherwise, the distinction between orders under Ss.438 and 439 shall be rendered meaningless and redundant. 15. If the protective umbrella of S.438 is extended beyond what was laid down in Salauddin's case the result would be clear by-passing of what is mandated in S.439 regarding custody." (emphasis supplied) 31. The learned Public Prosecutor contends that in the light of the observations of the Supreme Court in Salauddin's case to Adri Dharan Das's case, there can be no doubt that all orders under S.438(1) of the Cr. The learned Public Prosecutor contends that in the light of the observations of the Supreme Court in Salauddin's case to Adri Dharan Das's case, there can be no doubt that all orders under S.438(1) of the Cr. P.C. must be only of a limited duration and all who have secured orders under S.438 of the Cr. P.C. must again go to the regular Court and seek bail afresh. The Courts concerned under S.437/439 of the Cr. P.C. must then pass appropriate orders regarding bail on merits. S.438 (3) of the Cr. P.C. does not lay down any contra position. There is no conflict between the decision of the Constitution Bench in Gurbaksh Singh and the 5 decisions from Salauddin's case to Adri Dharan Das's case referred above. As there is specific reference to Gurbaksh Singh's case in Adri Dharan Das's case the dictum in Gurbaksh Singh's case has to be understood as explained in Salauddin's case to Adri Dharan Das's case. If such view were not taken the Courts will have to by-pass the provisions of S.437/439 of the Cr.P.C. The Supreme Court has specifically held that such by-passing of the regular court is impermissible. 32. The learned counsel for the petitioner Sri Sunny Mathew contends that such an interpretation would render S.438(3) of the Cr.P.C. to dead letter. Such understanding/ interpretation is impermissible. Such interpretation would run counter to the observations of the Constitution Bench in para 38 extracted above. It cannot lightly he assumed that Salauddin's case to Adri Dharan Doss case has altered the dictum rendered specifically by the larger Constitution Bench in para 38 of Gurbaksh Singh's case. Though there is reference to Gurbaksh Singh’s case in Adri Dharan Das’s case, there is no reference to para.38 of that decision extracted above. The reference is made in a totally different context. None of the 5 decisions have referred to or considered S.438 (3) Cr. P.C. The counsel further submits that a lot of unnecessary confusion prevails on account of the interpretation attempted to he canvassed by the learned Public Prosecutor. Even after the superior courts grant anticipatory bail, regular courts under S.437/439 of the Cr.P.C. which are approached by the accused persons, are at a loss to understand how the petitions are to be disposed of. Even after the superior courts grant anticipatory bail, regular courts under S.437/439 of the Cr.P.C. which are approached by the accused persons, are at a loss to understand how the petitions are to be disposed of. Is the grant of anticipatory bail on merits by the superior courts though for a specified period of time to weigh with them while considering the applications under S. 437/439 of the Cr.P.C.? Can a discretion exercised under S.438 of the Cr.P.C. by the superior courts be ignored altogether while considering the applications for regular bail under S.437/439 of the Cr.P.C.? It would he idle to expect detailed discussions on merits in the order passed under S.438 of the Cr.P.C. and in these circumstances, the subordinate courts find it very difficult when called upon to exercise the discretion under S.437/439 of the Cr. P.C., submits counsel. 33. The law of precedents make it crystal clear that judicial discipline has to be followed while understanding/interpreting precedents. It would be puerile for the prosecution to contend that the observations in para 38 in Gurbaksh. Singh's case by the Constitution Bench stands in any way altered by the subsequent decisions of Benches of lesser number of Judges. The Constitution Bench has made it crystal clear that while a restriction regarding the period of operation of an order under S.438 of the Cr.P.C. is permissible, the normal rule should be that there should be no such limitation. Salauddin's case to Adri Dharan Das's case cannot be held to lay clown any contra legal position. The normal rule must be as held by the Constitution Bench in Gurbaksh Singh's case. 34. The observations in Salauddin's case to Adri Dharan Das's case can certainly be harmonised easily with the dictum in Gurbaksh Singh’s case. In a case where the Court of Session or the High Court is not persuaded to issue a direction under S.438 of the Cr. P.C. unlimited by time, those observations will hold the field. Where the superior court is inclined to grant only an order under S.438 of the Cr. P.C. limiting the period of operation and issue a direction that regular bail must be sought under S.437/439 of the Cr. P.C., those observation in Salauddin's case to Adri Dharan Das's case would govern the field. in such cases the jurisdiction of regular courts under S.437/439 of the Cr. P.C. cannot be by-passed. P.C. limiting the period of operation and issue a direction that regular bail must be sought under S.437/439 of the Cr. P.C., those observation in Salauddin's case to Adri Dharan Das's case would govern the field. in such cases the jurisdiction of regular courts under S.437/439 of the Cr. P.C. cannot be by-passed. In other cases, there can really be no question of by-passing the jurisdiction of courts under S.437/439 of the Cr.P.C. as the arresting official has already granted bail in obedience to the directions of the superior court. Bail in a non-bailable offence can be granted even by an officer-in­charge of the police station under S.437 of the Cr.P.C. if necessary conditions exist. It is not therefore the law that in all cases courts must pass orders regarding bail under S.437 or 439 of the Cr. P.C. Even an officer-in-charge of the police station can grant bail in a non-bailable offence in terms of S.437 of the Cr. P.C. Where the superior court under S.438 of the Cr.P.C. has directed the appearance before the Magistrate concerned and obtaining further orders under S.437/439 of the Cr. P.C. the jurisdiction of such courts cannot be by-passed as that would amount to violation of the conditional order passed under S.438 of the Cr. P.C. But where an order under S.438 Cr.P.C. unlimited in point of time has been passed and the accused has already been arrested and released by the police, no question of seeking bail again under S.437 or 439 of the Cr. P.C. can arise at the pre-cognizance stage. 35. In this view of the matter, I am unable to agree that there is any conflict between the dictum in Gurbaksh Singh's case and the observations in Salauddin's case to Adri Dharan Das's case extracted above. I may attempt to summarise the position in the following words: (i) S. 438 of the Cr. P.C. confers an extraordinary equitable discretion in favour of the superior courts. The direction issued under S.438 of the Cr.P.C. the Cr.P.C. is a direction regarding the post-arrest right to bail. Such discretion is to be invoked only if compelling circumstances are available and in aid of justice. An order under S. 438 of the Cr. P.C. virtually converts a non-bailable offence into a bailable one after the arrest is effected; in that, the arrestee becomes entitled for bail as of right subject to conditions stipulated. Such discretion is to be invoked only if compelling circumstances are available and in aid of justice. An order under S. 438 of the Cr. P.C. virtually converts a non-bailable offence into a bailable one after the arrest is effected; in that, the arrestee becomes entitled for bail as of right subject to conditions stipulated. (ii) It is not necessary in all cases to limit an order under S.438 of the Cr.P.C. to any specified period of time. Nay, the normal rule should be that no such limit should be imposed, as held in Gurbaksh Singh's case. (iii) But the superior court does certainly have the jurisdictional competence in an appropriate case in the interests of justice to limit the period of such order of anticipatory hail. The court has the jurisdictional competence to direct that within the period specified the accused must appear before the court concerned and seek bail under S.437/439 of the Cr. P.C. (See Salauddin's case to Adri Dhuran Das's case) (iv) Where an order of anticipatory bail under S. 438 of the Cr. P.C. is passed without any such limitation/conditions regarding the period of time or the obligation of the accused to appear before the court concerned and to seek regular hail under S. 437/439 of the Cr. P.C., the mandate of S.438 (3) of the Cr.P.C. comes into play. Thereafter, the officer or the court arresting the accused or having him in custody must comply with the mandate of S.438 (3) of the Cr. P.C. It is not necessary for such an accused to again approach the regular court under S.437/439 of the Cr. P.C. for bail at any pre-cognizance stage. At the post cognizance stage, the direction under S.204 (1)(b) of the Cr.P.C. shall stand controlled by the stipulations in S.438 (3) of the Cr. P.C. 36. The learned counsel for the petitioner then contends that in this case though there was a direction to the police officer to release the petitioner on hail for a period of one month, there. was no direction that the petitioner must approach the learned Magistrate for bail under S.437 of the Cr. P.C. The petitioner was, in fact, arrested and released on hail within the specified period of one month and the final report has already been filed. was no direction that the petitioner must approach the learned Magistrate for bail under S.437 of the Cr. P.C. The petitioner was, in fact, arrested and released on hail within the specified period of one month and the final report has already been filed. In these circumstances, the Investigating Officer cannot arrest the petitioner again, the purpose of arrest having already been served. The learned counsel for the petitioner further contends that the Magistrate taking cognizance must follow the mandate of S.438 (3) of the Cr. P.C. notwithstanding the fact that the petitioner has not obtained bail under S.437/439 of the Cr. P.C. within the period of one month. 37. The learned counsel for the petitioner concedes that there was some confusion, as there was no specific direction to appear before the learned Magistrate and seek bail though there was an observation that the release on hail was to he for a period of one month. It is, in these circumstances, that B.A.No.4550/05 has been filed seeking further directions under S.438 of the Cr.P.C. 38. I am satisfied that in the peculiar facts and circumstances of this case, the petitioner's prayer for issue of fresh directions under S.438 of the Cr.P.C. can he accepted. The offences alleged are cognizable non-bailable offences and the police officer is competent jurisdictionally to arrest the petitioner without any warrant. 39. A police officer is competent to investigate into a cognizable offence under Chapter XXII of the Cr.P.C. and S. 157 of the Cr.P.C. clearly shows that the police officer shall proceed to the spot to investigate the facts and circumstances "and if necessary, to take measures for the discovery and arrest of the offender". 40. The jurisdiction to arrest the offender is an important right/power in the hands of the police officer under S. 157 of the Cr. P.C. It is important to note that the law does not mandate that such arrest must take place in every case. All that S. 157 of the Cr.P.C. stipulates is that the police official investigating into the offence may arrest the offender, "if necessary". A vital discretion is vested in the police official. He can arrest; but he may or may not arrest. Only if necessary the arrest has to be effected. To examine an accused person and to ascertain details from him, it is not always necessary to arrest the accused. A vital discretion is vested in the police official. He can arrest; but he may or may not arrest. Only if necessary the arrest has to be effected. To examine an accused person and to ascertain details from him, it is not always necessary to arrest the accused. The powers under S.160 of the Cr.P.C. extends to the power to require attendance of the accused also. Merely because the police officer has the power to arrest an accused, he need not be arrested. This is evident again from S.173(2) of the Cr.P.C. which states that the final report must show whether the accused has been arrested (S. 173(2)(i)(e)]. If he has not been arrested, that fact can be reported to the learned Magistrate in the final report. 41. It is true that it is normally assumed that in every cognizable offence if the accused is available, arrest must be effected and in every non-bailable offence unless the accused is released under S.437 of the Cr. P.C. by the police officer, he must be produced before the Magistrate concerned. This prevalent impression is not strictly justified by the language of Ss. 157, 160 and 173 of the Cr. P.C. Arrest need he made only if necessary. The accused can be examined even without arrest by invoking the powers under S. 160 of the Cr.P.C. available m a police officer. If the arrest has not been effected, that fact is to be reported to the Magistrate under S. 173 (2) of the Cr. P. C. A ritualistic arrest is not contemplated in S. 157 of the Cr.P.C. 42. It follows therefore that a police officer has to alertly consider in every case whether it is necessary to effect arrest. An arrest entails traumatic consequences. The polity dreads arrest by a police officer. The prospect is frightening. There must therefore be a proportionately onerous and sublime responsibility on the police officer to consider whether such arrest is necessary. Only if necessary, such arrest ought to be effected. If not necessary an accused person should not be subjected to such trauma. While exercising such discretion, mind has to be applied to the question. All relevant inputs must go into the discerning mind before exercising that discretion. The reason for exercising that discretion in favour of arrest must certainly he adverted to. If not necessary an accused person should not be subjected to such trauma. While exercising such discretion, mind has to be applied to the question. All relevant inputs must go into the discerning mind before exercising that discretion. The reason for exercising that discretion in favour of arrest must certainly he adverted to. Nay, I would even insist that the reasons for exercise of such discretion must be recorded in the Case Diary by the police official concerned. A police officer who is a functionary invested with discretionary powers on such a vital aspect under the Code cannot lightly exercise the power of arrest. He must satisfy himself by adverting to all necessary inputs that it is necessary to effect arrest. I would also observe that a proper exercise of such discretion in favour of arrest must he preceded by recording of the reasons for such arrest in the Case Diary also. The Case Diary in every case must show that this sublime discretion was exercised by the police official after adverting to the circumstances and only thereafter on the basis of valid reasons the power of arrest was invoked and exercised against an accused person. A system which values and cherishes the right to freedom and liberty zealously must insist on such informed exercise of discretion by the Police Officer before he effects the arrest. 43. Having said so, the question now is whether it is necessary for the Investigating Officer in this case to arrest the petitioner. Except that the order under S.438 of the Cr.P.C. is only for a period of one month, there is no other reason to justify the arrest. This Court has once exercised the power under S.438 of the Cr. P.C. in favour of the petitioner. There was no specific direction, though impliedly it was very much there, that the petitioner must appear before the Magistrate and seek regular bail within such period of one month. The arrest has already been effected. The petitioner has already been questioned. Final report has already been filed. In these circumstances. I am satisfied that a further direction can be issued under S.438 of the Cr.P.C. in favour of the petitioner. The facts of the case to which reference has already been made, make it clear that this is an eminently fit case where such equitable discretion deserves to be invoked. 44. Final report has already been filed. In these circumstances. I am satisfied that a further direction can be issued under S.438 of the Cr.P.C. in favour of the petitioner. The facts of the case to which reference has already been made, make it clear that this is an eminently fit case where such equitable discretion deserves to be invoked. 44. In the result, these petitions are allowed. Following further directions are issued under S.438 of the Cr. P.C.: (i) The petitioner shall appear before the learned Magistrate having jurisdiction at 11 a.m. on 22-8-2005. He shall execute a bond for Rs.50,000 with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. On execution of such bond, the petitioner shall be released on bail by the learned Magistrate. (ii) If the petitioner does not appear before the learned Magistrate, as directed in Clause (i) above, the direction above shall lapse and thereafter it shall be open to the learned Magistrate to issue coercive processes to secure the presence of the petitioner.