- (1.) Learned Single Judge has referred the following questions to us : Whether issue of a warrant of arrest or an order in writing for arrest under section 55 (1), Cr. P.C. 1973 would operate as a bar against an accused person to apply for bail under section 438 Cr. P. C. ?
(2.) In order to answer this question we shall have to take into consideration the history of the provisions contained in section 438 Cr. P.C. (1973) (hereinafter referred to as the new code).
(3.) Before the new code came into force, there was no provision for the grant of anticipatory bail in the old code. The legislature in its wisdom has now incorporated a provision for issuing the directions for the grant of anticipatory bail. Prior to the enforcement of the new code there was a conflict of judicial opinion about the power of a court for the grant of anticipatory bail. The consensus of the judicial opinion was that anticipatory bail could be granted to such a person who has either been arrested or a restraint of some kind has been placed on the liberty Of the than by a competent authority. The Parliament now in its wisdom, has conferred a power on the High Court and the court of Sessions Judge to issue direction under section 438 for the grant of bail even before he is actually arrested. On the recommendation of the Law Commissioner which was made in the following language : "The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for several 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.";