Judgment In this petition filed under Section 438 Cr.P.C., petitioners seeks inter-state anticipatory bail. 2. Offences alleged are under Sections 420, 406, 504 and 506 of I.P.C. 3. Petitioners are doing textile business in the name and style of 'VTX Industries Ltd.' in Kuniammuthur, Coimbatore. They have loan transaction with S.E. Investments Ltd. in Agra, U.P. In this connection, dispute arose between both sides. S.E. Investments filed O.M.P.No.767 of 2013 under Section 9 of the Arbitration and Conciliation Act, 1996 before the Delhi High Court. It also filed C.C.No.414 of 2013 under Section 138 of Negotiable Instruments Act, 1981 in the Court of the learned Additional Chief Metropolitan Magistrate (South), Delhi. 4. With regard to the very same matter, S.E. Investments had also lodged a police complaint with the Inspector of Police, Hariparwat Police Station, Agra, Uttar Pradesh (4th respondent). A case in Crime No.645 of 2013 for offences under Sections 420, 406, 504 & 506 of I.P.C. has been registered by the 4th respondent. In connection with this case, the Inspector of Police, B4 Police Station, Race Course, Coimbatore (third respondent) threatens to arrest the petitioners. 5. In the circumstances, petitioners seeks interim anticipatory bail to go to Agra, U.P. to approach the concerned Court for relief. 6. Notices have been sent to 4th respondent and also to the Public Prosecutor, Lucknow Bench of Allahabad High Court. But none appeared. 7. According to the learned Senior Counsel appearing for the petitioners, when an accused is sought to be apprehended at a place where he is residing, although in the said place the offence complained of has not been committed, the Court has power to grant interim anticipatory bail for a limited period to enable him to approach the concerned Court, within whose jurisdiction the offence is alleged to have been committed, for bail. 8. In this connection, the learned Senior Counsel for the petitioners cited GURBAKSH SINGH SIBBIA VS. THE STATE OF PUNJAB ( AIR 1980 SC 1632 (1)), PRITAM SINGH VS. STATE OF PUNJAB (1980 CRI. L.J. 1174(1)), CAPT. SATISH KUMAR SHARMA VS. DELHI ADMINISTRATION AND OTHERS (1991 CRI.L.J. 950(1)), S.P.SHANTHI SWAROOP VS. STATE OF TAMIL NADU (1992 L.W. CRI. 475), NEELANDRA PANDEY VS. THE STATE OF U.P. & OTHERS ( 1998(4) CRIMES 719 ) and SARVADHIKARI VS. THE SUBINSPECTOR OF POLICE IRINJALAKUDA TOWN POLICE STATION (2013(2) MWN (Cr.) 109). 9. STATE OF PUNJAB (1980 CRI. L.J. 1174(1)), CAPT. SATISH KUMAR SHARMA VS. DELHI ADMINISTRATION AND OTHERS (1991 CRI.L.J. 950(1)), S.P.SHANTHI SWAROOP VS. STATE OF TAMIL NADU (1992 L.W. CRI. 475), NEELANDRA PANDEY VS. THE STATE OF U.P. & OTHERS ( 1998(4) CRIMES 719 ) and SARVADHIKARI VS. THE SUBINSPECTOR OF POLICE IRINJALAKUDA TOWN POLICE STATION (2013(2) MWN (Cr.) 109). 9. On the other hand, the learned Government Advocate (Crl. Side) made two-fold submissions. Firstly, this Court cannot grant inter-state anticipatory bail. In support of this submission, the learned Government Advocate cited SYED ZAFRUL HASSAN VS. STATE and STATE OF ASSAM AND ANOTHER VS. R.K.KRISHNA KUMAR AND ORS. 10. The second submission of the learned Government Advocate (Crl. Side) is that generally inter-state anticipatory bail can be granted to enable the accused to approach the concerned Court within whose jurisdiction, the offence has been committed for anticipatory bail. If the competent Court itself has no power to grant the main relief, namely, anticipatory bail, this Court cannot grant interim relief. 11. The learned Government Advocate (Crl. Side) submitted that in the State of U.P. Section 438 of Cr.P.C. envisaging granting of anticipatory bail has been deleted. In such circumstances, this Court cannot grant inter-state anticipatory bail directing the petitioners to approach a Court in U.P. for relief. 12. In reply, the learned Senior Counsel for the petitioners reiterated that whenever the accused apprehends arrest he can be granted interim relief. In support of his submissions, the learned Senior Counsel cited GURBAKSH SINGH SIBBIA (supra). 13. The learned Senior Counsel for the petitioners also submitted that recently on 16.01.2014 in KM. HEMA MISHRA VS. STATE OF U.P. AND OTHERS (Crl.A.No.146 of 2014), the Hon'ble Supreme Court taking note of the fact that no provision envisaging grant of anticipatory bail under Section 438 Cr.P.C. is available in the State of U.P. and also a judgment of a Seven-Judge Bench of the Allahabad High Court in SMT. AMARAWATI AND ORS. V. STATE OF U.P. ((2005) CRI.L.J. 755) held that the Courts in U.P. can grant interim bail pending disposal of the bail petition. 14. I have anxiously considered the rival submissions, perused the averments in the anticipatory bail petition, materials on record and the decisions cited at the bar. 15. Anticipatory bail, is 'bail before jail'. It is bail in advance. So, it is 'advance bail'. So, it is pre-arrest bail. 14. I have anxiously considered the rival submissions, perused the averments in the anticipatory bail petition, materials on record and the decisions cited at the bar. 15. Anticipatory bail, is 'bail before jail'. It is bail in advance. So, it is 'advance bail'. So, it is pre-arrest bail. If bail is asked for after the arrest, it is post (after) – bail. It is also 'custody bail', 'regular bail'. In anticipatory bail, a man outside the jail is asking bail. While in regular bail, a man inside the jail is asking bail. 16. Chapter XXXIII of the Code of Criminal Procedure, 1973 deals with bail provisions. In this chapter, Section 436 (bailable offences) and Section 437 (non-bailable offences) deals with power of the Magistrates to grant bail. Section 439 Cr.P.C. deals with concurrent power of the Sessions Court and the High Court to grant bail. 17. In the Old Code of 1898, there is no provision for the grant of anticipatory bail. In the New Code of 1973, granting of anticipatory bail is provided in Section 438 Cr.P.C. Actually under Section 438 Cr.P.C., the Sessions Courts and the High Court were given concurrent power to issue direction to release the accused in the event of his arrest. Actually it is anticipatory bail. 18. Two pre-requisites for the grant of anticipatory bail are there must be apprehension of arrest and it must be with reference to alleged commission of a non-bailable offence. Anticipatory bail can be asked for even when the F.I.R. is not registered, if the said two pre-requisites are satisfied. (See GURBAKSH SINGH SIBBIA (supra)). This power to issue direction under Section 438 Cr.P.C. is made available to the Sessions Court and the State High Courts. It is with reference to alleged commission of some non-bailable offences. 19. Now, in this case, the petitioners were alleged to have committed certain non-bailable offences in the District of Agra in the State of Uttar Pradesh. The offences were not committed within the State of Tamil Nadu. They were not committed within the jurisdiction of this High Court. The offences were said to have been committed in the State of Uttar Pradesh, which is beyond the territorial jurisdiction of this Court. Thus, the petitioners are seeking inter-state anticipatory bail. 20. In PRITAM SINGH VS. STATE OF PUNJAB (1980 CRI. They were not committed within the jurisdiction of this High Court. The offences were said to have been committed in the State of Uttar Pradesh, which is beyond the territorial jurisdiction of this Court. Thus, the petitioners are seeking inter-state anticipatory bail. 20. In PRITAM SINGH VS. STATE OF PUNJAB (1980 CRI. L.J. 1174(1)), the offences were alleged to have been committed in the State of Panjab and under Section 438 Cr.P.C., the Delhi High Court granted inter-state anticipatory bail to the accused with a direction to approach the Panjab High Court to seek bail. 21. Again in CAPT. SATISH KUMAR SHARMA VS. DELHI ADMINISTRATION AND OTHERS (1991 CRI.L.J. 950(1)), a Division Bench of the Delhi High Court in a Writ Petition under Article 226 of the Constitution of India granted inter-state anticipatory bail. 22. In NEELANDRA PANDEY VS. THE STATE OF U.P. & OTHERS ( 1998(4) CRIMES 719 ), again the Delhi High Court granted inter-state interim transit anticipatory bail, enabling the accused to approach the Lucknow Bench of the Allagabad High Court to obtain further relief. 23. However, in SYED ZAFRUL HASSAN VS. STATE, a Full Bench of the Patna High Court held that granting of inter-state anticipatory bail is not contemplated in Section 438 Cr.P.C. and negatived the plea for grant of anticipatory bail with reference to the offences committed beyond its territorial jurisdiction limits. 24. In S.P.SHANTHI SWAROOP VS. STATE OF TAMIL NADU (1992 L.W. CRI. 475), a Division Bench of this Court elaborately gone into the question and held that grant of anticipatory bail under Section 438 Cr.P.C. cannot be restricted to the Courts within whose jurisdiction the offence is alleged to have been committed. The proper focus would be the place where the person is sought to be apprehended/arrested with reference to a non-bailable offence, although it might have been committed beyond their territorial limits of the Court in which anticipatory bail is sought for. If a person is to be arrested within its territorial limits, High Court or Sessions Courts notwithstanding the fact that the offences are committed beyond their territorial limits, under Section 438 Cr.P.C, they could grant interim anticipatory bail. However, it should be for a limited duration, enabling the accused to approach the concerned Court in the another State to seek appropriate relief. 25. In SARVADHIKARI VS. However, it should be for a limited duration, enabling the accused to approach the concerned Court in the another State to seek appropriate relief. 25. In SARVADHIKARI VS. THE SUB-INSPECTOR OF POLICE IRINJALAKUDA TOWN POLICE STATION (2013(2) MWN (Cr.) 109, a learned Single Judge of this Court referring to SHANTHI SWAROOP (supra) granted inter-state anticipatory bail to a person sought to be arrested in this State with reference to his alleged commission of certain offences in the State of Kerala, however, restricted the relief to four weeks, directing him to approach the concerned Court for anticipatory bail. 26. In STATE OF ASSAM AND ANOR. VS. R.K.KRISHNA KUMAR AND ORS ( 1988 AIR (SC 144), the Hon'ble Supreme Court set aside the anticipatory bail granted by the Bombay High Court to the accused with reference to certain offences said to have been committed by them in the State of Assam. 27. A perusal of the judgment of the Hon'ble Apex Court in KRISHNA KUMAR (supra) shows that the Hon'ble Apex Court has not decided the issue whether Bombay High Court has jurisdiction to entertain the application for anticipatory bail with reference to the offences committed in the State of Assam. The Hon'ble Apex Court set aside the inter-state anticipatory bail order on the ground that no notice was given to the State of Assam and they were not heard by the Bombay High Court before granting inter-state anticipatory bail. 28. Therefore, it is clear that as per the judgment of the Hon'ble Apex Court in KRISHNA KUMAR (supra), it cannot be stated that under Section 438 Cr.P.C. the High Courts and the Sessions Courts have no power to grant inter-state anticipatory bail. 29. From the above discussion and more particularly the Division Bench judgment of this Court in SHANTHI SWAROOP (supra), if a person is sought to be arrested in a place for his alleged commission of offence in another State can seek anticipatory bail in the Sessions Court or the High Court within whose territorial limits he is sought to be arrested. 30. Now in the present case, petitioners were alleged to have committed certain offences in Agra, in the State of Uttar Pradesh. They seek inter-state anticipatory bail. 31. In this case, for granting them inter-state anticipatory bail some problem arises. 30. Now in the present case, petitioners were alleged to have committed certain offences in Agra, in the State of Uttar Pradesh. They seek inter-state anticipatory bail. 31. In this case, for granting them inter-state anticipatory bail some problem arises. It is because of the fact that in the State of Uttar Pradesh, Section 438 Cr.P.C, which enables the Sessions Courts and the High Court to grant anticipatory bail is not in existence. 32. As already stated, at the outset, in the New Code of Criminal Procedure, 1973, Section 438 empowering the Sessions Courts and the High Courts to grant anticipatory bail has been inserted. But through Section 9 of the Criminal Procedure (Uttar Pradesh) Amendment Act, 1976, the Uttar Pradesh State Legislature has deleted Section 438 Cr.P.C. Thus in the State of Uttar Pradesh, there is no provision for granting anticipatory bail. 33. As we have already seen, as per the decision in SHANTHI SWAROOP (supra), though the offences were alleged to have been committed in the District of Agra in the State of Uttar Pradesh, this Court has got the power to grant anticipatory bail, notwithstanding the fact that no such power is available in the State of Uttar Pradesh. 34. The idea of granting inter-state anticipatory bail is to enable the accused to approach the concerned competent Court in the State of Uttar Pradesh to seek bail or other appropriate relief. But as we have seen already, in the State of Uttar Pradesh, there is no provision like Section 438 Cr.P.C. enabling the Courts therein to grant anticipatory bail. 35. Under these circumstances, while upholding the provision deleting Section 438 Cr.P.C. in the State of Uttar Pradesh, the Hon'ble Apex Court in KARTAR SINGH AND ORS. VS. STATE OF PUNJAB ( (1994) 3 SCC 569 ), held as follows: “368. .... (17). Though it cannot be said that the High Court has no jurisdiction to entertain an application for bail under Article 226 of the Constitution and pass orders either way, relating to the cases under the Act 1987, that power should be exercised sparingly, that too only in rare and appropriate cases in extreme circumstances. But the judicial discipline and comity of courts require that the High Courts should refrain from exercising the extraordinary jurisdiction in such matters; .....” 36. Subsequently, in SMT. AMARAWATI AND ORS. VS. But the judicial discipline and comity of courts require that the High Courts should refrain from exercising the extraordinary jurisdiction in such matters; .....” 36. Subsequently, in SMT. AMARAWATI AND ORS. VS. STATE OF U.P. ((2005) CRI.L.J. 755), a Seven Judge Bench of the Allahabad High Court held as follows: “(1) Even if cognizable offence is disclosed, in the FIR or complaint the arrest of the accused is not a must, rather the police officer should be guided by the decision of the Supreme Court in JOGINDER KUMAR VS. STATE OF U.P., 1994 Cr. LJ 1981 before deciding whether to make an arrest or not. (2) The High Court should ordinarily not direct any Subordinate Court to decide the bail application the same day, as that would be interfering with the judicial discretion of the Court hearing the bail application. However, as stated above, when the bail application is under Section 437 Cr.P.C. ordinarily the Magistrate should himself decide the bail application the same day, and if he decides in a rare and exceptional case not to decide it on the same day, he must record his reasons in writing. As regards the application under Section 439 Cr.P.C. it is in the discretion of the learned Sessions Judge considering the facts and circumstances whether to decide the bail application the same day or not, and it is also in his discretion to grant interim bail the same day subject to the final decision on the bail application later. (3) The decision in DR. VINOD NARAIN VS. STATE OF UP is incorrect and is substituted accordingly by this judgment.” 37. Subsequently, in LAL KAMLENDRA PRATAP SINGH VS. STATE OF UTTAR PRADESH AND OTHERS ( (2009) 4 SCC 437 )), upholding the decision of the Division Bench of the Allahabad High Court, the Hon'ble Apex Court has held as follows: “6. Learned counsel for the appellant apprehends that the appellant will be arrested as there is no provision for anticipatory bail in the State of U.P. He placed reliance on a decision of the Allahabad High Court in AMARAWATI VS. STATE OF U.P. in which a seven-Judge Full Bench of the Allahabad High Court held that the court, if it deems fit in the facts and circumstances of the case, may grant interim bail pending final disposal of the bail application. STATE OF U.P. in which a seven-Judge Full Bench of the Allahabad High Court held that the court, if it deems fit in the facts and circumstances of the case, may grant interim bail pending final disposal of the bail application. The Full Bench also observed that arrest is not a must whenever an FIR of a cognizable offence is lodged. The Full Bench placed reliance on the decision of this Court in JOGINDER KUMAR VS. STATE OF U.P. ( (1994) 4 SCC 260 . 7. We fully agree with the view of the High Court in AMARAWATI case and we direct that the said decision be followed by all courts in U.P. in letter and spirit, particularly since the provision for anticipatory bail does not exist in U.P. 8. In appropriate cases interim bail should be granted pending disposal of the final bail application, since arrest and detention of a person can cause irreparable loss to a person's reputation, as held by this Court in JOGINDER KUMAR case. Also, arrest is not a must in all cases of cognizable offences, and in deciding whether to arrest or not the police officer must be guided and act according to the principles laid down in JOGINDER KUMAR case.” 38. Recently in Km.HEMA MISHRA VS. STATE OF U.P. AND OTHERS (Criminal Appeal No.146 of 2014 decided on 16.01.2014), the Hon'ble Apex Court referred to AMARAWATI (supra) and also LAL KAMLENDRA PRATAP SINGH (supra). 39. Therefore, from the above, it is seen that though in the State of Uttar Pradesh the provisions of Section 438 Cr.P.C. enabling grant of anticipatory bail has been deleted, still the Courts have power to grant inter-state bail. Further, even in Uttar Pradesh under Article 226 of the Constitution of India, High Court can grant anticipatory bail in appropriate cases and all the Courts can grant interim bail under Section 439 Cr.P.C. 40. Now, in the light of the above discussions with reference to Section 438 of Cr.P.C. in the State of Uttar Pradesh and the decisions in SHANTHI SWAROOP (supra), AMARAWATI (supra) and HEMA MISHRA (supra), we could grant inter-state anticipatory bail to the petitioners for a limited period to enable them to seek appropriate bail orders from the concerned Court in U.P. 41. In these circumstances, it is ordered as under: (i) Interim anticipatory bail is granted to the petitioners. In these circumstances, it is ordered as under: (i) Interim anticipatory bail is granted to the petitioners. (ii) Within 15 days from the date of receipt of a copy of this order, the petitioners shall surrender before the learned Judicial Magistrate No. III, Coimbatore. (iii) On their such surrender, they shall be released on bail. (iv) Each petitioner shall execute a bond for Rs.10,000/- (Rupees Ten Thousands only) with two sureties, who shall execute a bond for a likesum to the satisfaction of the said Magistrate. (v) Within six weeks of such surrender before the said Magistrate, the petitioners shall appear before the learned Principal Sessions Judge, Agra in Uttar Pradesh and seek appropriate relief.