Anticipatory bail cannot be indirectly granted after refusal by directing release on surrender before the Magistrate.

Section 438 CrPC confers only pre-arrest protection, and the court must act within that statutory limit. After declining anticipatory bail, it cannot indirectly grant the same relief by directing that the accused be released on surrender before the Magistrate on terms fixed by that court. Such a direction bypasses the distinct post-custody regime under Sections 437 and 439 and is beyond jurisdiction. The impugned order was therefore invalid and set aside, and the accused were left to seek regular bail in accordance with law.

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Issues: Whether the High Court could, while declining anticipatory bail under Section 438 of the Code of Criminal Procedure, direct that on surrender before the Magistrate the accused would be released on bail on such terms as the Magistrate deemed fit.

Analysis: Section 438 of the Code permits only a direction for release on bail in the event of arrest, and the discretion under that provision must be exercised within its statutory limits. Anticipatory bail is a pre-arrest protection, distinct from bail under Sections 437 and 439, which operate after custody. An order which, after refusing anticipatory bail, still directs release on surrender effectively confers the same protection indirectly and bypasses the statutory scheme. Such a direction amounts to an impermissible exercise of power beyond Section 438 and cannot be sustained.

Conclusion: The direction allowing release on surrender was invalid and was set aside. The accused were required to seek regular bail in accordance with law.

Final Conclusion: The appeals succeeded, and the impugned directions granting indirect anticipatory protection were annulled for being contrary to the statutory framework governing anticipatory bail.

Ratio Decidendi: A court exercising power under Section 438 of the Code of Criminal Procedure cannot, after refusing anticipatory bail, indirectly secure the same relief by directing release on surrender before the Magistrate; any such order is beyond jurisdiction and contrary to the statutory scheme.

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