1. A simple but interesting question of importance is projected in this, petition: The point for decision is whether the assistance of the Court by way of an order under S. 438 of the Criminal P.C could be sought against an anticipated arrest on a possible accusation of a non-bailable offence resulting from some action which the petitioners are intending to do believing it to be legal.

2. 29 cents of land in R.S No. 27/2 of Panoor Village is claimed both by the first petitioner and one Manni. Both claim title and possession. First petitioner lays claim on the basis of a registered assignment deed dated 28-7-1984 and Manni claims by document No. 15 of 1963. Second petitioner is the climber who is intended to be engaged by the first petitioner for plucking coconuts from the property. For having trespassed into the said property and plucked coconuts Crime No. 31 of 1985 was registered against the first petitioner and he is on bail. On the strength of his alleged title and possession he wants to enter the property again to pluck coconuts engaging the second petitioner. He fears that the same may result in another crime involving non-bailable offences against him and the second petitioner and their consequent arrest. It is against this that the petitioner seek a direction under S. 438. The Public Prosecutor representing the State pointed out that title and possession are with Manni and the first petitioner was only attempting to take law into his hands. It is not the province of this Court while exercising jurisdiction under S. 438 to embark on an enquiry into the rival claims. It is for either party to choose the appropriate forum to fight out their claims if so advised. It may be true that legal presumption will be in favour of innocence until a person accused of an offence is found guilty and convicted. But that presumption may not extend to matters like title and possession over the subject-matter of the offence. At any rate the process of Courts cannot be extended to afford a helping hand or to act as an insurance against something, which, though alleged to be in the purported exercise of right, is likely to be treated as an offence in the sense that it is an inroad into the rights of someone else. In other words the process of Court cannot be extended to afford protection to do something which is likely to be interpreted as commission of a crime even if the offender intends it as something, in exercise of his right Regarding the self same property an earlier attempt resulted in the registration of a crime which is now pending before a Court of law. The first petitioner could have awaited decision of the case. If he wanted an earlier adjudication of his rights he could have approached a competent civil Court or resorted to other remedies, if any, available under law. If the prayer in this petition is to be allowed this Court may have to continue such protection endlessly as and when it is sought for depending upon the continued desire of the petitioner to exercise his rights. So also if this petition is allowed that can give rise to a similar petition or petitions from the rival claimant it is a right available to all to defend his person or property from inroads. In exercise of that right commission of offences to the extent necessary are protected also. If the present petition is allowed Manni can very well approach this Court and say that under the cover of the order the petitioners are going to encroach upon his property and he may be granted anticipatory bail against arrest in any possible accusation which is likely when he attempts to defend his person or property. That will create a situation of lawlessness. That is not the purpose or object of S. 438. The effect of such orders will be encouragement of crimes.

3. What the petitioners want is the protection of anticipatory bail anticipating ever so many contingencies. At present there is no accusation against them of having committed a non-bailable offence. Consequently no arrest is in contemplation on the accusation of any such offence. Therefore there is no existing reason to believe that they may be arrested on any such accusation. They intend to enter the disputed land on some future date in exercise of the alleged right of ownership to take the usufructs. That may of may not happen. If that happens the rival claimant may or may not resist Equally he may or may not approach the police and the police may or may not register a case against him. Arrest is also only an uncertain contingency. Application for a direction under S. 438 is in anticipation of all these contingencies happening on some future indefinite date. The second petitioner has admittedly nothing to do with the property and he also wants to get himself involved in a crime on behalf of the first petitioner and for that purpose he also wants to arm himself under the cover of S. 438.

4. In order to make S. 438 applicable to such a case the scope and ambit of the section will have to be extended and the language strained. As a condition precedent to its application the section makes it incumbent that there must be an existing accusation of having already committed a non-bailable offence. On such an accusation there must be reason to disbelieve (believe?) that he or they may be arrested. A mere apprehension of arrest will not suffice. That must be on the basis of an accusation of having committed a non-bailable offence. That means the apprehension must be reasonable and based on existing facts. Imaginary accusation or future possible accusations will not be sufficient. On such accusations which are yet to come there cannot be any reasonable apprehension of an existing threat of arrest is a condition precedent for an application under S. 438 that there must be an existing reasonable apprehension of arrest on an existing accusation of having already committed a non-bailable offence prior to the point of time of filing the application. That accusation will have to be specified in the application and the direction to be sought for is for release in case of arrest in connection with that accusation. Protection under S. 438 could be claimed only against specified accusations and not against possible arrest in general against unspecified existing accusations or accusations likely to arise in future What is contemplated is not a blanket protection. If that be so anybody could approach the Court and request that he may be directed to be released whenever and wherever arrested in connection with any case and under the covert of such an order any offence could be committed with the assurance that he will be released if arrested. That is not what the section contemplates. So also the Court also could grant the relief only as against arrest in connection with existing specified accusations. It is true that in order to invoke the provision it is not necessary that a case has already been registered or even a first information has been lodged. But the Court must be satisfied that there is a reasonable chance of arrest connection with some specified accusation. The prayer of the petitioners, am afraid, is beyond the scope of S. 438. In this connection it is pertinent to note that in Gurbaksh Singh v. State of Punjab, (1980) 2 SCC 565 : AIR 1980 SC 1632 : (1980 Cri LJ 1125) the Supreme Court (Chief Justice Chandrachud speaking for the Bench) observed:—

“The Court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective. The power should not be exercised in a vacuum.”

5. An order for bail can be effective only from the time of arrest. Grant of bail means to set at liberty a person arrested or imprisoned on security for appearance. The difference is that anticipatory bail is granted in anticipation of arrest and it becomes effective from the very moment of arrest it is an insurance against arrest for offence or offence in respect of which alone it was issued.

6. A vain attempt was made by the petitioner's Advocate Sri Mohan to rely on Art. 21 of the Constitution and different observations in the above judgment; (1980) 2 SCC 565 : AIR 1980 SC 1632 : (1980 Cri LJ 1125) as if they will operate in favour of his client in getting the relief prayed for. It is true that personal liberty guaranteed under Art. 21 includes all the freedoms conferred by Art. 19(1)(a) to (g). But that is also subject to reasonable restrictions and subject to the due process of law or procedure established by law. It will not give unrestricted freedom in the sense of immunity from arrest according to the due process of law.

7. At para 26 of (1980) 2 SCC 565 : AIR 1980 SC 1632 : (1980 Cri LJ 1125) it is observed that imposition of unnecessary restrictions on the scope of S. 438 will amount to deprivation of peronal liberty and hence restrictions not imposed by the legislature cannot be applied since the applicant will be entitled to the presumption of innocence. But that decision has not laid down that the conditions intrinsic in S. 438 will have to be relaxed or ignored. It was further said at para 31 that it may not be correct to say that anticipatory bail cannot be granted unless the proposed accusation is actuated by mala fides. That will not in any way help the petitioner and that aspect is irrelevant for our purpose. Para 35 of that decision held:

“The use of the expression “reason to believe” shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere ‘fear’ is not ‘belief’, for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively, because it is then alone that the Court can determine whether the applicant has reason to believe that he may be so arrested. Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely”.

(Emphasis supplied)

8. It is not known how these observations will help the petitioner. They will only go against his claim.

9. Para 37 of that judgment was also relied on by Shri Mohan. It was pointed out therein that there is an important principle involved in the insistence that facts, on the basis of which a direction under Sec. 438(1) is sought, must be clear and specific, not vague and general. It was also held therein.

“A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of what kind of offence is alleged to have been committed by the applicant and when, an order of bail which comprehends allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the applicant even if he commits, say, a murder in the presence of the public. Such an order can then become charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed. Therefore, the Court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective.” (Emphasis supplied) fail to understand how the above observations also will go to help the case pleaded by the petitioners.

10. In para 39 which was also relied only Mr. Mohan the Supreme Court made mention of certain exceptional cases in which in view of the materials placed before the Court certain directions were given for anticipatory bail for short periods until filing of the FIR and how these orders struck a balance between the individuals right to personal freedom and the investigational right of the police.

11. There is nothing to indicate that these directions were in cases of the nature before me.

12. do not think that at any rate S. 438(1) could be extended to the limit of bringing the allegations contained in the present petition within its ambit. According to the belief of the petitioners what they are going to do is not an offence. If that belief is correct and based on reasonable facts they need not be afraid of any accusation or arrest and they could contend that such arrest and accusation are illegal. But the position does not appear to be so and the petition does not appear to have been presented with the best of intentions. Circumstances show that it was intended only as a test case.

13. The petition is rejected.

14. Petition dismissed.