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The submission of learned counsel for the applicant is that if in the opinion of this Court anticipatory bail is to be granted, it should be done in one go finally determining such bail application. He has been at pains to submit that passing an interim order in the first instance granting interim bail under sub-Section (2) of Section 438 Cr.P.C. and then posting the application for final orders under sub-section (5) would add to the burden of the Court where dockets with these kind of applications are already bursting. He submits that deferring the final determination of the application post grant of an interim order of anticipatory bail really has no purpose to subserve. It is the learned counsel's submission that in this matter, a more pragmatic and workable approach should be adopted by the Court where, as already said, the Court should grant anticipatory bail absolute in one stroke and dispose of the application, where it finds a case for the grant of it.

The proviso to Sub-section (1) of Section 438 Cr.P.C. also indicates by implication of a third option available to the Court where the Court may neither reject the application forthwith or grant an interim order directing anticipatory bail. It may pass some other order like adjourning the consideration of the application or pass an order calling upon the State to show cause why an interim order of the kind contemplated by sub-section (1) of Section 438 Cr.P.C. be not made. The proviso clearly postulates this kind of option where it says that "the High Court, or as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail", the police would have Authority to arrest the accused without warrant.

It brooks little doubt, therefore, that the Court under sub-section (1) of Section 438 Cr.P.C. can pass an order rejecting the application for anticipatory bail or pass an interim order granting on a probational basis, subject to further exercise in accordance with the succeeding provisions of Section 438 Cr.P.C. or to pass some other order neither rejecting the bail nor granting it. Since the power to grant anticipatory bail, in the first instance, flows from sub-section (1) of Section 438, this Court is of opinion that the only order that Court can make in favour of the accused at the first hearing of the application is an interim order granting him the indulgence of anticipatory bail. This view which the Court takes is fortified by sub-section (2) of Section 438 Cr.P.C. that enumerates that in cases where the Court passes an interim order granting anticipatory bail under sub-section (1), "the Court shall indicate therein the date, on which the application for grant of anticipatory bail shall be finally heard for passing an order thereon, as the Court may deem fit", to borrow the precise language of the statute in sub-section (2). Sub-section (2), therefore, envisages the next stage of the exercise of power to grant anticipatory bail, in cases where under Sub-section (1), the Court passes an interim order directing grant of bail. The fact that sub-section (2) envisages a date for "final hearing" of the anticipatory bail application is not consistent with the suggested course of exercise of power to be undertaken in one instance. Rather, sub-section (1) and (2) read together exclude the exercise of power to grant anticipatory bail in a single instance of its exercise.

This Court also finds it pertinent to observe that though sub-section (5) is in the nature of legislative mandate to the Court, be it High Court or the Court of Session to decide an application for anticipatory bail within a period of 30 days of the making of such an application, which underlines the desirability of early disposal of such applications but in case for any reason the final hearing does not take place on the dated fixed for this purpose by the Court, there is no need for any extension of the interim order which was passed at the first instance earlier. The interim order of anticipatory bail passed in the first instance shall inure and subsist till it is confirmed or modified or cancelled under section 4 of Section 438 of Cr.P.C. The interim order for grant of anticipatory bail passed under Section 438(1) of Cr.P.C. must not be confounded or confused with the bail orders that are passed by the Courts till next date of listing of regular bail application in the light of the pronouncements given in cases like Amrawati and another Vs. State of U.P. 2004 (57) ALR 290 or Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC). Such interim orders as are contemplated in the aforesaid pronouncements are not in compliance of any statutory scheme of law. But they are in the nature of a benefice interpretation of law or a benefice exercise of judicial discretion in favour of accused granting him indulgence of a short liberty to remain on interim bail and avoid unnecessary incarceration just because his regular bail application is not being heard for reasons of non-availability of papers or instructions or for the reasons of preoccupation of overburdened Courts with other work. These interim bails are ordinarily granted by the Courts till next date of listing of the matter and they come to an end on that date unless extended. In such matters when the regular bail application is heard finally the same is granted or rejected by the Court but such granting of bail or its rejection is not in the nature of any cancellation or confirmation or modification of any previous interim bail order. The final orders passed with regard to regular bail applications are not having any nexus with the interim bail that might have been passed by the Court in favour of the accused for interregnum period. There is no continuity between such interim order of bail and the final order that is passed in regular bail applications in due course. Unlike the final orders passed with regard to anticipatory bail as contemplated under Section 438(4) of Cr.P.C., the bail order passed in regular bail applications are not the evolutionary culmination of any previous interim bail order. The final order order with regard to anticipatory bail can be passed only under Section 438(4) of Cr.P.C., the exercise of which necessarily depends upon the prior existence of the interim order of anticipatory bail passed under Section 438(4) of Cr.P.C.