PRABHA SHANKER MISHRA, J. - (1.) THE petitioner herein along with another co - accused had moved this court for bail under Section 438 of the Code of Criminal Procedure, 1973 in the instant case. While ordering the release of the accused on bail in the event of arrest, by its order dated 25th September, 1997 a Bench of this court put the following conditions: "1. that the petitioner No. 1 (petitioner herein) shall make himself available for interrogation by a Police Officer as and when required;
(2.) THAT the petitioner No. 1 shall not, directly or indirectly, make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the Police Officer;
(3.) THAT the petitioner No. 1 must attend the concerned police station twice a week until further order and must not leave the jurisdiction of the concerned police station except for attending Court proceedings; This order of anticipartory bail would remain operative for a period of six weeks from today subject to the decision of the Supreme Court passed in the case of K.L. Verma v. State and Another S.D.P. (Crl) Nos. 2578 and 3278 A of 1996. This period of six weeks should not weigh with the learned Court below at the time of consideration of any bail application, if made, on behalf of the petitioners. " The petitioner herein, thereafter appeared before the S.D.J.M. Asansol on 4.11.97 before the expiry of six weeks. The learned Magistrate, in view of the order above passed by a bench of this court, granted interim bail. The matter, however, whether regular bail be granted to the petitioner, was taken up by the learned Magistrate on 17.12.97. The learned Magistrate rejected the bail application and observed : "As the accused person was granted anticipatory bail by the Hon'ble Court, the accused person is not taken into custody this date and is given 7 days' time to move higher forum." The application for bail under section 439 of the Criminal Procedure Code, 1973 is moved before this court on 19.12.97 with the request that the same be listed in court on 22.12.97. The application, however, came up for hearing on 5.1.98 and as directed it has been posted for orders to -day. In Salauddin Abdulsamad Shaikh v. The State of Maharashtra reported in 1996(1) SCC 667 : JT 1995(9) SC, 165 a three Judge Bench of the Supreme Court has held - "Under section 438 of the Code of Criminal Procedure when any person has reason to believe that he may be arrested on an accusation of having committed a non -bailable offence, the High Court or the Court of Session may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail and in passing that order, it may include such conditions having regard to the facts of the particular case, as it may deem appropriate. Anticipatory bail is granted in anticipation of arrest in non -bailable cases, but that does not mean that the regular court, which is to try the offender, is sought to be by - passed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry directed the petitioner to move the regular court for bail. That is the correct procedure to follow because it must be realised that when the Court of Session or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and therefore, it is not informed about the nature of evidence against the alleged offender. It is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the Court granting anticipatory bail should leave it to the regular Court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge -sheet is submitted. It should be realised that an order of anticipatory bail could even be obtained in cases of serious nature as for example murder and, therefore, it is essential that the duration of that order should be limited and ordinarily the Court granting anticipatory bail should not substitute itself for the original court which is expected to deal with the offence. It is that Court which has then to consider whether, having regard to the material placed before it, the accused person is entitled to bail......" Salauddin was granted anticipatory bail by the High Court which was to enure up to 26.9.95. The High Court had imposed certain conditions one of which was similar to one of the conditions in the instant case that he would report to the police station everyday till 25.9.95. Salauddin stated that he had complied with each and every conditions imposed under the order. The bail application however in which interim anticipatory bail order was made by the High Court which order was to enure up to 26.9.95, came up for final disposal and the learned. Judge directed for moving regular bail application before the Court which was in session of the criminal case pending against him and observed that the bail application should be disposed of uninfluenced by the observation made in the order passed earlier on 13.9.95. An appeal by special leave before the Supreme Court was taken against the order under which the learned Judge of the High Court had directed Saluaddin to move the Court concerned for regular bail. Since, however, the order in the appeal was passed by the Supreme Court on 11.12.95 and the High Court had granted an interim order by which the duration of the anticipatory bail was extended and, it was stated before it that Salauddin, for the said reason, had not applied for bail before the regular Court, the Supreme Court ordered : "he may do, if he so desires, within two weeks from today." In K.L. Verma v. State and Anr. reported in 1997(1) CHN 54, the Supreme Court has explained Salauddin's case by stating that an order of anticipatory bail does not enure till the end of trial but it must be of limited duration as the regular Court cannot be by -passed. K.L. Verma had filed two Special Leave Petitions against the orders made by a learned Judge of the Delhi High Court dated 9.10.96 -one being an order directing that in the event of arrest of the accused persons pursuant to the order of the Chief Metropolitan Magistrate, Delhi dated 4th October, 1996, the accused would be released on bail on each of them furnishing a personal bond..... and the duration of the anticipatory bail would be up to 14th October, 1996 when on that date the accused would appear before the learned Magistrate and apply for regular bail which application would be decided by the Court in accordance with law and the other was directing issuance of notice on the question whether sanction under section 197 of the Criminal Procedure Code was required for taking cognizance in the case of K.L. Verma since he was, at the relevant point of time, a public servant, in which returnable date was fixed on 1st November, 1996. The learned Judge while issuing notice in the second case aforementioned had refused to grant stay of further proceedings but merely issued notice on the said application. The Supreme Court took notice of the above to observe - "the effect of this is that the non -bailable warrant issued by the Chief Metropolitan Magistrate would be executed against him also before the Court decides the issue whether or not the sanction under section 197 of the Code was a sine qua non for taking cognizance of the offence alleged to have been committed by him." Proceeding thereafter to explain the view expressed in Salauddin's case the Supreme Court has observed as follows : "........the High Court placed reliance on this Court's decision in Salauddin Abdul Ahamed Shaibh v. State of Maharashtra, (1996) 1 SCC 667 which was a case in which the High Court, while granting interim anticipatory bail, imposed certain conditions, one of which was that the accused should move for regular bail before the Court which was in session of the case pending against him. The High Court also observed that the application should be disposed of uninfluenced by the observations made in the earlier order. The Special Leave Petition was directed against that order of the High Court. While dealing with that order, this Court observed that under section 438 of the Code, when any person has reason to believe that he may be arrested on an accusation of having committed a non -bailable offence, the High Court or the Court of Session may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail and in passing that order, it may include such conditions as it may deem appropriate. This Court further observed that anticipatory bail is granted in anticipation of arrest in non -bailable cases, but that does not mean that the regular Court which is to try the offender, is sought to be by - passed. It was, therefore, pointed out that it was necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration, the Court granting anticipatory bail should leave it to the regular Court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge -sheet is submitted. By this, what the Court desired to convey was that an order of anticipatory bail does not enure till the end of trial but it must be of limited duration as the regular Court cannot be by -passed. The limited duration must be determined having regard to the facts of the case and the need to give the accused sufficient time to move the regular Court for bail and to give the regular Court sufficient time to determine the bail application. In other words, till the bail application is disposed of one way or the other, the court may allow the accused to remain on anticipatory bail. To put it differently, anticipatory bail may be granted for a duration which may extend to the date on which the bail application is disposed of or even a few days thereafter to enable the accused person to move the higher Court; if they so desire. This decision was not intended to convey that as soon as the accused persons are produced before the regular Court the anticipatory bail ends even if the Court is yet to decide the question of bail on merits." The above leaves no manner of doubt that if as a condition of bail in the event of arrest, in exercise of its power under section 438 of the Code of Criminal Procedure, the High Court or the Court of Session fixes its duration, the accused, if so advised or if so directed by the Court, can seek bail under section 437 of the Code and/or 439 of the Code and if regular bail is refused but outer limit of the anticipatory bail is not yet over the accused shall not be taken into custody until the expiry of the said period of anticipatory bail and he may, if so advised, move the higher Court for regular bail. If, however, as a condition of bail in the event of arrest, it is ordered by the Court while exercising its power under section 438 of the Code that the anticipatory bail shall enure until regular bail application is heard and ordered once regular bail application is heard and ordered there would be no surviving order of anticipatory bail which in accordance with prescribed procedure of law must follow the surrender of the accused for regular bail. If the regular bail application is moved within the limited duration of anticipatory bail it is obvious on the expiry of the duration the accused can be arrested and taken in custody. There may be a situation, however, when application for regular bail is moved within the duration of anticipatory bail so granted but the order is delayed and it is likely to come after the expiry of the duration the Court hearing the regular bail application can always grant interim regular bail. As a condition however, for grant of interim regular bail if it has to operate on and from a date after the expiry of the duration of the anticipatory bail the accused must surrender and be in the custody of the Court on the date of the order. If however no interim order of regular bail is made or the regular bail application is refused and there is no remaining period of anticipatory bail available to the accused he must surrender and if he has not done so he can always be arrested in accordance with the prescribed procedure of law. Mr. Mukherjee, learned counsel for the petitioner, however, has, with some vehemence and we say so in our order for it appears that there has been similar attempt before the learned Sub -Divisional Judicial Magistrate as his order indicates, drawn our attention to that portion of the judgment of the Supreme Court wherein it is stated as follows : "In the above view we think it appropriate to direct till the High Court decides the question of sanction under Section 197 of the Code, the further proceedings in the trial court shall stand stayed. The High Court should dispose of the application as early as possible or soon after the returnable date i.e. 1 st November, 1996. As far as the order of 9th October 1996 is concerned since it proceeds on a misreading of Salauddin's case we modify the order by directing that the anticipatory bail will enure till the regular Court decides the question of grant of bail and for a week thereafter so that if the regular court refused bail the accused person can if so advised move the higher court." Ratio decid in K.L. Verma's case has been culled out by us earlier which we with respect recognise as the law under Article 141 of the Constitution of India. The operative part of the order of the Supreme Court aforequoted on which Mr. Mukheriee has placed reliance has been made in view of the fact that anticipatory bail was valid up to 14th October, 1996 and only a day earlier of the expiry of the anticipatory bail order of the High Court the Supreme Court was dealing with the special Leave Petition of K.L. Verma. While modifying the order to thus enable Verma to seek regular bail and if the regular Court refused bail, to enable him to move the superior Court , the Supreme Court said - "we modify the order by directing that the anticipatory bail will enure till the regular Court decides the question of grant of bail and for a week thereafter so that if the regular Court refused bail the accused person, can, if so advised, move the higher court". The fact and situation, thus, in which the Supreme Court passed the above order in K.L. Vetma's case was substantially different from the fact and situation in the instant case. This Court granted anticipatory bail to the petitioner on condition that it would remain operative for a period of six weeks from the date of the order subject to the decision of the Supreme Court in the case of K.L. Verma (supra). Anticipatory bail order was made on 25th September, 1997. The application for regular bail was heard and ordered on 17.12.97. There was no part of the period of anticipatory bail ordered by the High Court remaining which the petitioner could utilise for moving the superior Court after the prayer for bail was refused by the learned Magistrate. It seems the learned Magistrate, however, was persuaded not to take the petitioner in custody as he was granted anticipatory bail by the High Court and he accordingly ordered - "as the accused person was granted anticipatory bail by the Hon'ble Court, the accused person is not taken into custody this date and is given 7 days' time to move higher forum. The accused person is directed to appear on 26.12.97 along with order from higher forum." We are informed at the bar that the learned Magistrate has extended time for surrender and/or bring order from the higher court until tomorrow. Since we have taken the view, however, that anticipatory bail granted by the High Court was not surviving on the date the regular bail petition of the petitioner was refused by the learned Magistrate, we direct that the instant application for bail be posted for orders after the petitioner surrenders pursuant to the order of the learned Magistrate. Put up the matter on Monday -the 12th January, 1998. Order accordingly.;