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6. However, in this very decision, the Constitution Bench has held that provisions of Section 438 Cr.P.C. cannot be invoked after the arrest of the accused. Grant of anticipatory bail to an accused, who is under arrest, involves contradiction to term of provision under section 438 Cr.P.C., as the first pre-condition for granting anticipatory bail is a reasonable apprehension of being arrested, on an accusation of having committed a non-bailable offence. The constitution Bench also decided that operation of an order passed under Section 438 Cr.P.C. necessarily should not be limited in point of time. The normal rule should be, not to limit the operation of the order in relation to period of time.

11. Observation of the Supreme Court in K.L.Verma‟s case was that even after expiry of the limited period of anticipatory bail, for a few days ad- interim relief can be granted to the accused to move higher Court. This view was held per in curium as the decision was without giving reference to the requirement of Section 439 Cr.P.C.

12. Similar view has also been taken in the decision reported in 2009 (2) BBCJ 119, where it has been held that protection in terms of Section 438 Cr.P.C is for a limited duration, during which one has to move to the regular Court for bail in terms of Section 439 Cr.P.C. Mandate of Section 439 Cr.P.C. is that the applicant has to be in custody. The distinction between order under Sections 438 and 439 Cr.P.C. shall be rendered meaningless and redundant, if the protective umbrella under Section 438 Cr.P.C. is extended beyond the required period.

15. What I find that scope of Section 438 Cr.P.C. is to give relief to an accused who anticipates his arrest in connection with non- bailable offence. The Court is empowered in exercise of jurisdiction under Section 438 Cr.P.C. to grant him bail in anticipation of arrest. That arrest can be before submission of charge-sheet or after submission of the charge-sheet or after the cognizance has been taken in the case. If the Court has applied its juridical mind and is of this view that the person concerned despite being named as accused in a non-bailable offence is capable of granting anticipatory bail for the reason that (i) there is no chance of misuse of privilege of bail by him (ii) There is no apprehension of his absconding (iii) no chance of tampering with the evidence and (iv) will present himself for facing trial, in such cases, even if charge-sheet is submitted or cognizance is taken, anticipatory bail can be granted. Anticipatory bail which was granted earlier to an accused will not come to an end, and it will continue till conclusion of the trial, unless the order granting anticipatory bail is either cancelled by a judicial order, or the accused has been taken into custody, simply because the charge-sheet is submitted, it does not mean that the person who was granted anticipatory bail, has come beyond the protective umbrella of section 438 Cr.P.C.

16. Only distinction in between Sections 438 and 439 Cr.P.C. is that bail granted in exercise of jurisdiction under Section 438 Cr.P.C. is before the arrest of the accused and under Section 439 Cr.P.C, it is granted when the accused has either surrendered or has been taken into custody. The privilege which is given to the accused under both the sections are the same, but only distinction is of stage.

17. On account of certain changes and amendment brought in Section 438 Cr.P.C., in case of grant of anticipatory bail, the petitioners-accused has to surrender before the Court concerned. In case where anticipatory bail has been granted for a limited period, till submission of the charge-sheet, the petitioner again has to make a fresh prayer for bail, since, already on earlier occasion he had to surrender before the concerned Court and had furnished bail bond, so on submission of charge- sheet, the first pre-requisite for grant of anticipatory bail i.e. the person concerned must not have been arrested or surrendered before any Court, is not available to him. He has lost the requisite criteria of granting anticipatory bail, in that case except the surrendering before the competent Court for grant of regular bail, he is left with no other option.