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4.

r to Chapter XXXIII of CrPC codifies the provisions for bail and bonds. Following S. 436 CrPC, the arresting officer shall release the accused on bail in all bailable offences. However, in all Non Bailable offences, only the concerned Courts have the jurisdiction to grant bail and not the arresting officer.

5. Anticipatory bail provides that when a person apprehends her likely arrest in a FIR in a Non-Bailable offence, she may apply to the Court of Sessions or High Court, under S. 438 CrPC. Such Court may direct that in the event of her arrest, she shall be released on bail by the arresting officer. However, suppose she stands arrested before getting anticipatory bail or opts to surrender and thus taken into custody. In that case, she cannot file a petition for anticipatory bail because such a stage gets over. In such an event, the only remedy available to her is to file a regular bail petition in the Sessions Court or the High Court under Section 439 CrPC. Furthermore, when the offence is triable by Magistrate, she can also file a bail petition under Section 437 CrPC.

8. When the person accused of committing a Non-bailable offence is in custody, then the only option available to her is to apply for regular bail under S. 439 CrPC, and when the offences are exclusively triable by Judicial Magistrates, then also under S. 437 CrPC. The filing of such an application is a legal right and cannot be refused under any pretext. To grant or deny the bail is purely a Judicial function. The concerned Court may direct that any person accused of an offence and in custody be released on bail, subject to conditions and stipulations in S. 437 and 439 .

(4). However, the petitioner may apply for regular bail before the Court concerned and alongwith the said application, he may file an application for interim bail pending disposal of the regular bail application. We have made it clear on a number of occasions that the power to grant regular bail includes the power to grant interim bail pending final disposal of the regular bail application.

This power is inherent in the power to grant bail, particularly in view of Article 21 of the Constitution of India. We are of the .

opinion that in view of Article 21 of the Constitution, a person should not be compelled to go to jail if he can establish prima facie that in the facts of the case he is innocent. (5). Hence, if the present petitioner applies for regular bail before the Court concerned, he may also file an application for interim bail alongwith the same, which application shall be decided on the same day on which it is filed, pending final disposal of the regular bail application.