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(2 of 21) [CRLMB-9155/2019]

3. It would therefore be apposite to first note down the relevant provisions of Code of Criminal Procedure ("Cr.P.C."). Sections 41, 46, 81, 105 and Section 438 Cr.P.C. are as under:

"41. When police may arrest without warrant.--(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person--
1(a) who commits, in the presence of a police officer, a cognizable offence;

10. Section 438 Cr.P.C. as quoted above, provides an opportunity to a person to move an application for direction that if he is to be arrested in a case and the said person has reasons to believe that he shall be arrested then he may be released on bail and the said (10 of 21) [CRLMB-9155/2019] person if granted anticipatory bail, it would be on the conditions as specified under Section 438 Cr.P.C.

11. In Gurbaksh Singh Sibbia etc. (supra), the Supreme Court observed as under:

14. The Constitution Bench speaking through M.R. Shah, J. observed as under:

"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 Balchand Jain, "anticipatory bail" means (13 of 21) [CRLMB-9155/2019] "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 Cr.P.C. vests only with the Court of Sessions or the High Court. Therefore, ultimately it is for the court concerned to consider the application for "anticipatory bail" and while granting the "anticipatory bail" it is ultimately for the court concerned 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 pre-arrest bail order is made under Section 438 Cr.P.C. has to be arrested. However, once there is an order of pre-arrest 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 pre-arrest bail order under Section 438 and the bail order under Sections 437 & 439 Cr.P.C. The only difference between the pre-arrest 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 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 Cr.P.C. shows that there is nothing in the language of the Section which goes to show that the pre-arrest bail granted under Section 438 has to be time-bound. The position is the same as in Section 437 and Section 439 Cr.P.C.

24. However, keeping in view observations in Narinderjit Singh Sahni & Anr. (supra) and considering that the purpose of preventive arrest by a direction of the court on an application under Section 438 Cr.P.C. would be an order in vacuum. As a person is already in custody with the police, this Court is of the view that such an anticipatory bail application under Section 438 Cr.P.C. would not lie and would be nothing but travesty of justice in allowing anticipatory bail to such an accused who is already in custody.