GHANSHYAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Learned Single Judge has referred the following questions to us :

(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 :