Judgment:
ORDER
P.R. Shivakumar, J.
1. This petition has been filed under Section 438 Cr.P.C. by the petitioner herein who figures as first accused in a case registered as Crime No. 18 of 2009, on the file of D-2 Police Station, Chengalpattu, Kancheepuram District, for alleged offences punishable under Sections 147, 148, 341, 294(b), 307, 397 and 506(ii) IPC, another offence punishable under Section 25(1)(a)(1)(b) of The Arms Act and offences punishable under Sections 3 and 5 of the Explosives Act. The earlier petition filed before this Court for the very same relief for the very same case, which had been taken on file as Crl.O.P. No. 2349 of 2009, was dismissed on the ground that the petition did not contain the signature of the petitioner, nor was it supported by an affidavit of the petitioner and that even the memo of appearance did not contain the signature of the petitioner. The said order was passed on 16.03.2009 in which it was also held that a prima facie case for grave offences punishable under Sections 397 and 307 IPC was made out. Despite the fact that the previous petition was dismissed citing the above said reasons, the petitioner has chosen to file the present petition with the very same defects.
2. This Court by an order dated 22.06.2009 directed the Registry to submit a report as to how this petition happened to be numbered despite the presence of such defects. On earlier occasions, this Court directed the office by way of judicial orders not to entertain petitions under Section 482 Cr.P.C. if such petitions are neither signed by the petitioner nor supported by an affidavit of the petitioner and not even accompanied by a memo of appearance containing the signature of the petitioner. Despite such directions, petitions are being filed with such defects and this is one such petition filed for the second time even after the dismissal of the earlier petition pointing out the said defects. In view of the fact that the office has come forward with an explanation that they have to act according to the oral instructions of the Judge concerned dealing with the applications for anticipatory bail, this Court deems it fit to pass an elaborate order detailing the procedure to be followed by the office in entertaining applications for anticipatory bail under Section 438 Cr.P.C.
3. For the sake of convenience, the provision found in Section 438 Cr.P.C. is extracted hereunder:
438. Direction for grant of bail to person apprehending arrest.
(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested,
either reject the application forthwith or issue an interim order for the grant of anticipatory bail:
Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application.
(1-A) Where the Court grants an interim order under Sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally beard by the Court.
(1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice. (2) When the High Court or the Court of Session makes a direction under Sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including-
(i) a condition that the person shall make himself available for interrogation by a police officer and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer, (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such other condition as may be imposed under Sub-section (3) of Section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the court under Sub-section (1).
4. The provision says when any person has reason to believe that he may be arrested on an accusation of' having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest, he shall be released on bail. The highlighted portions will clearly indicate that an application for anticipatory bail must be filed by the person who apprehends arrest on accusation of having committed a non-bailable offence. This provision cannot be compared with other provisions found in Cr.P.C. dealing with regular bail after arrest. Section 436 Cr.P.C. deals with the release of a person arrested on an accusation of having committed a bailable offence on bail. Section 437 Cr.P.C. deals with the powers of a Court other than the High Court or Court of Session to release a person arrested on accusation of or suspected of the commission of any non-bailable offence. Section 439 Cr.P.C. deals with the powers of the High Court and the Court of Session to direct the release of the person accused of any offence and is in custody. None of the above said provisions contemplates any application being filed by the person arrested for a direction for his release on bail. Those provisions simply deals with the powers of the Courts and the conditions that can be imposed while directing the release of the persons arrested.
5. Section 438 Cr.P.C. is unique in the sense it differs from the other provisions dealing with bail after arrest. It deals with pre-arrest bail which is otherwise called anticipatory bail. Pre-arrest bail granted under Section 438 Cr.P.C. will come into effect only on arrest. The law makers, in their wisdom, have thought it fit to incorporate a special provision in Section 438 to the effect that any person apprehending arrest on an accusation of having committed a non-bailable offence may apply to the High Court or the Court of Session for a direction that he shall be released on bail in the event of arrest. When the Section is so clear that the application should be filed by the person apprehending arrest, there is no question of entertaining an application at the instruction of any other person.
6. The case of an arrested person is on a different footing because he shall not be in a position to come and instruct the counsel to file a petition for his release on bail. Therefore, any person who is a relative or friend or any other person interested in such arrested person is allowed to give instructions to file a petition on his behalf for his release on bail. Such a concession shall not be extended to a person seeking anticipatory bail under Section 438 Cr.P.C. The intention of the legislature in this regard can also be culled out from the fact that the legislature has chosen to incorporate a Sub-clause in 1(b) of Section 438 Cr.P.C. making it obligatory on the part of the person seeking anticipatory bail to be present before the Court dealing with the anticipatory bail application, if such a direction would be issued on an application made to the Court by the Public Prosecutor. Of course, it is true that the said sub-clause introduced by an amendment by Act 25 of 2005 has not been brought into force in Tamil Nadu by notifying the same. But the reference to that provision is made only for the purpose of highlighting the intention of the legislature in coining the opening part of Section 438 Cr.P.C. Even without such reference to that provision in Sub-section 1(b), it shall be obvious that a petition for anticipatory bail under Section 438 Cr.P.C. may be moved only by the person apprehending arrest and not by any other person acting on his behalf.
7. The above said observation does not mean that an advocate cannot act on behalf of such a person. But for such an advocate to act on behalf of the petitioner, there must be an authorization either in the form of vakalat or memo of appearance signed by the petitioner authorizing the advocate to appear on his behalf. Otherwise such a petition should contain the signature of the petitioner or supported by an affidavit of the petitioner. The above said clarifications are made for future guidance of the Registry in entertaining petitions under Section 438 Cr.P.C. The instructions should be scrupulously followed, lest the same will be viewed as willful violation of the judicial order passed by this Court leading to prosecution for contempt.
8. Finally, this Criminal Original Petition is dismissed for the reason that the petition does not contain the signature of the petitioner, not is it supported by an affidavit of the petitioner and also there is absence of vakalat or memo of appearance containing the signature of the petitioner.