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3.6 It is further submitted by Shri Vishwanathan, learned Amicus Curiae that the order passed under Section 438, which is in the nature of a pre­arrest bail order, is however subject to the power granted to the Court of Session and the High Court under Section 439(2), Cr.P.C., which gives power to the Court of Session or the High Court to direct the arrest of the accused at any time. It is submitted that this ensures that through judicial intervention the balance between the two competing principles can again be revisited if the need arises. It is submitted that the only difference is that the power of arrest in these cases is exercised only after judicial scrutiny. It is submitted that in any case and as observed by this Court in Gurbaksh Singh Sibbia (supra), the orders once passed under Section 438 will continue till the trial unless in exercise of judicial discretion the Sessions Court or the High Court limits the same, looking to the facts and circumstances of the case and the stages at which the power under Section 438 Cr.P.C. is exercised. It is submitted that the Code presupposes that the order passed under Sections 438 or 439 are not or cannot be temporary time bound. It is submitted that a person in whose favour an order of pre­arrest bail is passed can be taken into custody thereafter only when a specific direction is passed under Section 439(2) of the Code.

7. We have heard the learned counsel for the respective parties at length.

In the light of the conflicting views of the different Benches of varying strength, the following questions are referred for consideration by a larger Bench:

“(1) Whether the protection granted to a person under Section 438 Cr.P.C. should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail.

(2) Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court.” 7.1 At the outset, it is required to be noted that as such the expression “anticipatory bail” has not been defined in the Code. As observed by this Court in the case of Balchand Jain (supra), “anticipatory bail” means “bail in anticipation of arrest”. As held by this Court, the expression “anticipatory bail” is a misnomer inasmuch as it is not as if bail is presently granted by the Court in anticipation of arrest. An application for “anticipatory bail” in anticipation of arrest could be moved by the accused at a stage before an FIR is filed or at a stage when FIR is registered but the charge sheet has not been filed and the investigation is in progress or at a stage after the investigation is concluded. Power to grant “anticipatory bail” under Section 438 of the Cr.P.C. vests only with the Court of Sessions or the High Court. Therefore, ultimately it is for the concerned court to consider the application for “anticipatory bail” and while granting the “anticipatory bail” it is ultimately for the concerned court to impose conditions including the limited period of “anticipatory bail”, depends upon the stages at which the application for anticipatory bail is moved. A person in whose favour a pre­arrest bail order is made under Section 438 of the Cr.P.C. has to be arrested. However, once there is an order of pre­arrest bail/anticipatory bail, as and when he is arrested he has to be released on bail. Otherwise, there is no distinction or difference between the pre­arrest bail order under Section 438 and the bail order under Section 437 & 439 of the Cr.P.C. The only difference between the pre­arrest bail order under Section 438 and the bail order under Sections 437 and 439 is the stages at which the bail order is passed. The bail order under Section 438 of the Cr.P.C. is prior to his arrest and in anticipation of his arrest and the order of bail under Sections 437 and 439 is after a person is arrested. A bare reading of Section 438 of the Cr.P.C. shows that there is nothing in the language of the Section which goes to show that the pre­arrest bail granted under Section 438 has to be time bound. The position is the same as in Section 437 and Section 439 of the Cr.P.C.

“19. The object of Section 438 CrPC has been repeatedly explained by this Court and the High Courts to mean that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. But at the same time the provisions of Section 438 Cr PC cannot also be invoked to exempt the accused from surrendering to the 2010 (1) SCC 679  court after the investigation is complete and if charge-sheet is filed against him. Such an interpretation would amount to violence to the provisions of Section 438 Cr PC, since even though a charge-sheet may be filed against an accused and charge is framed against him, he may still not appear before the court at all even during the trial.

97. A great ignominy, humiliation and disgrace is attached to the arrest.

Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post- conviction stage. Whether the powers under section 438 Cr.P.C. are subject to limitation of section 437 Cr.P.C.?

98. The question which arises for consideration is whether the powers under section 438 Cr.P.C. are unguided or uncanalised or are subject to all the limitations of section 437 Cr.P.C.? The Constitution Bench in Sibbia's case (supra) has clearly observed that there is no justification for reading into section 438 Cr.P.C. and the limitations mentioned in section 437 Cr.P.C. The Court further observed that the plentitude of the section must be given its full play. The Constitution Bench has also observed that the High Court is not right in observing that the accused must make out a “special case” for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by section 438 Cr.P.C. to a dead letter. The Court observed that “We do not see why the provisions of Section 438 Cr.P.C. should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable.”