KUDAL, J. - (1.) THIS application for anticipatory bail under sec. 438 (1), Cr. P. C, 1973 has been moved on behalf of Sawai Singh. Similar application moved before the learned Sessions Judge, Pali was dismissed on 2. 11. 75.
(2.) THE facts of the prosecution case, as disclosed in the First Information Report are that at about 6. 30 a. m. on 3. 9. 1975, a report was lodged with the police by Heera Lal to the effect that Khiv Singh son of Ganesh Singh was attacked by the applicant Sawai Singh and one Ram Singh. It is alleged that Ram Singh caused two injuries by axe on the head of Khiv Singh while Sawai Singh dealt lathi blows on Khiv Singh resulting in fracture of 8th to 12th ribs, of Khiv Singh. Khiv Singh was medically examined, and the injuries of his head caused by the accused Ram Singh were found to be simple, while the injuries caused by the lathi strokes by Sawai Singh were found to be grievous. Ram Singh was apprehended by the police, and at his instance, an axe was recovered. An application for bail was moved on his behalf, and he was enlarged on bail by the orders of the learned Sessions Judge, Pali dated 12th October, 1975. The applicant Sawai Singh could not be apprehended by the police, but he, in turn, moved an application under sec 438, Cr. P. C. before the learned Sessions Judge, Pali, which was rejected on 8. 11. 1975, on the ground that if a direction is issued at this stage, it might adversely hamper the investigation of the case, and the chances of the recovery of the alleged weapon of offence i. e. lathi, will be marred. Feeling aggrieved against this order of the learned Sessions Judge, Pali, the present bail application has been filed. On behalf of the applicant, it was contended that sec. 438, Cr. P. C. 1973 is a new provision enabling a High Court or a Court of Session to issue a direction under sec. 438 (1), Cr. P. C. to enlarge the accused on bail when he is apprehended. It was further contended that this provision has been incorporated with a view to avoid unnecessary harassment, humiliation and disgrace to the accused persons who have been involved in false and frivolous criminal cases. It was further contended that the purpose of the bail is to secure the attendance of the accused for the purpose of investigation and trial when the occasion so arises. The learned counsel for the applicant strenuously argued that the object of the Legislature could be a guiding principle to ascertain in what cases a direction, as contemplated under sec. 428 (1), Cr. P. C. 1973, could be issued. On behalf of the State, the application has been seriously opposed. It has been contended that the provisions of sec. 438, Cr. P. C. are not intended to give a short-circuit to the criminals. It was also contended that the intention of the Legislature in enacting sec. 438, Cr. P. C. is totally different. It was also contended that there is no presumption in law that the investigating agency would abuse its powers while dealing with the accused-applicant. It was also contended that in the instant case, the accused applicant is avoiding arrest despite the fact that warrant for his arrest under sec. 56f 1) has been issued long ago. It was, therefore, contended that it is not a fit case in which a direction under sec. 438 (1), Cr. P. C. could be issued. The contentions of the learned counsel for the accused-applicant and the learned Public Prosecutor have been considered, the case diary and the order of the learned Sessions Judge have been perused. The learned counsel for the parties relied on Jabar Mal vs. State (1) wherein it was held that neither the High Court nor the subordinate Court has power under the Code of Criminal Procedure to grant bail to a person seeking bail if he has not been arrested or detained in custody or brought before them, or a warrant of arrest or even an order in writing for his arrest under sec. 56, Cr. P. C. has been issued against him. The mere fact, that a report of a cognizable offence, has been made against him before the police and is under investigation, and he may be arrested by the officer-in-charge of the police station without a warrant and perhaps disgraced, does not empower the court to grant him bail, as under these circumstances, there is no actual danger of restraint to the person concerned. Reliance was also placed on Rule 383 (1) of the High Court Rules. At the very outset, it can be said that Rule 383 (1) of the High Court Rules and the case reported in Jabar Mal vs. State of Rajasthan (1) have got no relevancy to the facts of the present case, because there is no provision similar to sec. 438, Cr. P. C. , 1973 incorporated in the old Criminal Procedure Code. The learned counsel for the parties also relied on a decision in the case of Sawai Singh vs. State (S. B. Criminal Bail Application No. 1304 of 1974 under sec. 438, Cr. P. C, 1973 decided on October 8, 1974 ). The learned counsel for the applicant also relied on the observations made in the case of Khinvdan vs. State (2 ). Section 438 (1), Cr. P. C. , 1973 reads as under: - " (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. " The discretion vested in the High Court and the Court of Session is an unfettered discretion. If the Court of Session or the High Court thinks fit, a direction as contained in sec. 438 (1), Cr. P. C. may be issued in appropriate cases. The Legislature in its wisdom thought it proper not to lay down any condition wherein the discretion may be exercised or may be declined. It goes without saying that the Court have to exercise their discretion in a judicious manner. The purpose and intent of introducing this new section, whereby the provisions of an anticipatory bail have been made, can be gathered from clause 447 of the Bill which provides for anticipatory bail. The framers of the Code observed as under:- - "as recommended by the Commission, a new provision is being made enabling the superior courts to giant anticipatory bail, i. e. a direction to release a person on bail even before the person is arrested. With a view to avoid the possibility of hampering the investigation, special provision is being made that the court granting anticipatory bail may impose such conditions as it thinks fit. These conditions may be that a person shall make himself available to the investigating officer as and when required and shall not do anything to hamper investigation. "
(3.) THE following are the observations contained in the Law Commission's report recommending the provisions for anticipatory bail: - "the necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false causes for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail. " THEse observations may act only as guidelines for interpreting the provisions of sec. 438, Cr. P. C. THE basic question for consideration is, whether the provisions of sec. 438, Cr. P. C. whereby the procedure for obtaining anticipatory bail has been incorporated, circumvent the provisions contained in sec. 437 and 439, Cr. P. C. regarding the enlargement on bail of an accused person. Having given my most anxious consideration to the question involved, I have no hesitation in holding that the ordinary rule of arrest and enlargement on bail shall continue to function during the investigation or trial of the cases; but when it is brought to the notice of the Court that the investigating agency is being exploited, or that the process is likely to be misused, the High Court or the Court of Session has been given the discretion to issue a direction in appropriate cases for releasing the accused on bail whenever he is apprehended. This would mean that the provisions of sec. 438, Cr. P. C. are to be utilised when either the investigating agency misdirects itself or from the perusal of the case diary it appears that innocent persons are likely to be harassed, or entangled in false and frivolous cases. In the present case, the First Information Report was lodged with the police that Ram Singh and the present applicant Sawai Singh have assaulted Khiv Singh with arrow and lathi. Ram Singh was arrested, and was also enlarged on bail, though the weapon of offence used by him was an arrow. Sawai Singh has been avoiding arrest, and has not made himself available to the police for investigation. Having carefully perused the case diary, there are no reasons to believe that the investigating agency is in any way going out of its way to implicate an innocent person in a false or frivolous criminal case. Under such circumstances, looking to the facts, as disclosed in the police diary, no occasion arises for issue of a direction under Section 438, Cr. P. C. 9. Hence, the application filed by the applicant for a direction under Section 438 (1), Cr. P. C. , 1973 is hereby dismissed. .;