TaxTMI 
TaxTMI 
2019 (12) TMI 241
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.... this nature cannot be passed while disposing of application for anticipatory bail. The Hon'ble Supreme Court in the case of Union of India vs. Padam Narain Aggarwal (2008) 13 SCC 305 in identical circumstances has held as under: - "64. In our judgment, on the facts and in the circumstances of the present case, neither of the above directions can be said to be legal, valid or in consonance with law. Firstly, the order passed by the High Court is a blanket one as held by the Constitution Bench of this Court in Gurbaksh Singh and seeks to grant protection to respondents in respect of any non-bailable offence. Secondly, it illegally obstructs. interferes and curtails the authority of Custom Officers from exercising statutory power of arrest a person said to have committed a non-bailable offence by imposing a condition of giving ten days prior notice, a condition not warranted by law. The order passed by the High Court to the extent of directions issued to the Custom Authorities is, therefore, liable to be set aside and is hereby set aside." 4. Further, submitted that said judgment has been followed by the Supreme Court consistently and more recently in the case of Stat....
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....ot been challenged, thus has attained finality and thereafter, the respondent was summoned by the petitioner authority. 8. The issue to be decided before this Court is whether the Court has power to direct the Investigating Agency to issue notice prior to arrest 9. The terms 'arrest' is neither defined in the Code of Criminal Procedure, 1973 nor in the Indian Penal Code, 1960 nor there is any enactment dealing with offences demanding arrest. The word 'arrest' is derived from a French word 'ARRATER'. It means to stop, to restrain a person. 'Arrest' is thus restraining of a person, obliging him to be obedient to law. It may also be defined as "execution of command of law of a duly authorized officer" as observed in Union Of India vs Padam Narain Aggarwal (supra). 10. Section 41 to 44 & 46 Cr.P.C. deals with arrest. Section 41 states that police officer may without an order from a Magistrate and without a warrant, arrest any person who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned. 11. As per Section 42 Cr.P.C., ....
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....apply for bail , and recommended introduction of a provision for grant of 'anticipatory bail'. 14. Anticipatory bail being an extraordinary remedy available in special cases, this power has been conferred on the higher echelons of judicial service, namely, the Court of Sessions or the High Court. 15. The Code of Criminal Procedure, 1898 (Old Code) did not contain specific provision with regard to Section 438 of the present Code of 1973. Under the old Code, there was a sharp difference of opinion amongst various High Courts on the question whether a Court had inherent power to make an order of bail in anticipation of arrest. The Law Commission of India recommended to introduce express provision by observing as under:- "The suggestion for directing the release of a person on bail prior to his arrest (commonly known as "anticipatory bail") was carefully considered by us. Though there is a conflict of judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try t....
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....y in accordance with the recommendation made by the previous Commission. We agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised. We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the Public Prosecutor. The initial order should only be an interim one. Further, the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the court is satisfied that such a direction is necessary in the interests of justice. It will also be convenient to provide that notice of the interim order as well as of the final orders will be given to the Superintendent of Police forthwith". [Law Commission of India, Forty-eighth Report, para 31] 18. Keeping in view the reports of the Law Commission, Section 438 was inserted in the present Code. Sub-section (1) of Section 438 enacts that when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he....