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28. So, the very same analogy, as indicated earlier, would be applicable to the anticipatory bail also.

29. Section 438(2)(iv) (Anticipatory Bail) would provide for the imposition of condition as incorporated under Sub-section (3) of Section 437, Cr.P.C.

30. Section 437(3) (Bail) enjoins that Court may impose any condition which the Court considers necessary in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter.

31. Section 441 which falls under this Chapter says that the bail bond executed by the accused shall bind the person released on bail to appear before the Court to answer the charge. Thus, meaning of Bail or Anticipatory bail is the release of accused from custody to ensure his presence in the trial.

75. Another question arose in the Apex Court in a case where bail granted under Section 167(2), Cr.P.C. (default bail, that is, for having failed to file the charge sheet within the time prescribed) was sought to be cancelled on the ground that charge sheet was subsequently filed and that the earlier bail was riot on merits. But, this argument was rejected by the Supreme Court in the decision in Aslam Babalal Desai v. State of Maharashtra 1992 SCC (Cri) 870 : 1992 AIR SCW 2621 by observing that the bail granted under Section 167(2), though was not on merits, must be deemed to be an order of bail under Section 437 or 439, Cr.P.C. This also would indicate that order of anticipatory bail must be deemed to be order of bail under Sections 437 and 439, Cr.P.C. which will be valid for the entire period of trial.

80. The observation made in these decisions cannot be considered to be ratio decidendi in general, in view of the detailed interpretation of Section 438, Cr.P.C. earlier made by the Constitutional Bench in (supra).

81. In fact, the Constitutional Bench specifically observed, as referred earlier, that "the normal rule should be not to limit the; operation of the order in relation to the period of time....The High Court or the Court of Session, in an application for anticipatory bail, must apply its own mind and decide whether a case has been made out for granting such a relief. It cannot leave the question for the decision of the Magistrate under Section 437, Cr.P.C. as and when an occasion arises. Such a course will defeat the very object of Section 438 Cr.P.C.

141. Section 437, Cr.P.C. is one of the provisions falling under Chapter XXXIII, which relates to provisions as to bail. Under this Section, the Magistrate is precluded from releasing any person who is accused of the non-bailable offence punishable with death or imprisonment for life. Therefore, if the Sessions case, which is being committed by the Magistrate, relates to the offence punishable with death or imprisonment for life, the Magistrate cannot consider bail, as he is not empowered to.