(1.) In the light of the conflicting views of the different Benches of varying strength, more particularly in the cases of Shri Gurbaksh Singh Sibbia and others v. State of Punjab (1980) 2 SCC 565; Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694; Bhadresh Bipinbhai Sheth v. State of Gujarat (2016) 1 SCC 152 on one side and in the cases of Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996) 1 SCC 667, subsequently followed in the case of K.L. Verma v. State and another (1998) 9 SCC 348; Sunita Devi v. State of Bihar (2005) 1 SCC 608; Nirmal Jeet Kaur v. State of M.P. (2004) 7 SCC 558; HDFC Bank Limited v. J.J. Mannan (2010) 1 SCC 679; and Satpal Singh v. State of Punjab (2018) 4 SCC 303, the following questions are referred for consideration by a larger Bench:
(2.) Shri Harin P. Raval, learned Senior Advocate appearing as Amicus Curiae relying upon the decision of this Court in the case of Balchand Jain v. State of M.P. (1976) 4 SCC 572 has submitted that though the expression "anticipatory bail" has not been defined in the Code, as observed by this Court in the aforesaid decision, "anticipatory bail" means "bail in anticipation of arrest". It is submitted that in the aforesaid decision, this Court has further observed that the expression "anticipatory bail" is a misnomer inasmuch as it is not as if bail is presently granted by the Court in anticipation of arrest. It is submitted that when a competent court grants "anticipatory bail", it makes an order that in the event of arrest, a person shall be released on bail. It is submitted that there is no question of release on bail unless a person is arrested and, therefore, it is only on arrest that the order granting "anticipatory bail" becomes operative.
(3.) Shri K.V. Vishwanathan, learned Senior Advocate who was also requested to assist us as an Amicus Curiae has submitted that the exercise of power under Section 438 is exactly like the exercise of power under Sections 437 and 439 of the Cr.P.C. It is submitted therefore, the prearrest bail granted in anticipation of arrest under Section 438 ought to operate like any other order granting bail till an order of conviction or till an affirmative direction is passed under Section 439(2) of the Cr.P.C. It is submitted that therefore the law laid down by this Court in the cases of Gurbaksh Singh Sibbia (supra) and Siddharam Satlingappa Mhetre (supra) lay down the correct law. It is submitted that the exceptions carved out in Gurbaksh Singh Sibbia (supra) particularly in paras 19, 42 and 43 are well within the scheme of the Code.
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