In line with Gurbaksh Singh case here, AP High Court also delivered this judgment holding that
From Para 21,
It is also required to notice that an application under Section 437 or 439 Cr.PC as the case may be can be filed only after the arrest of the accused person or detained without a warrant. It would not be possible for any accused to file any application under Section 437 or 439 Cr.PC while the operation of the order under Section 438 Cr.PC is in force. Under those circumstances, the question of directing the accused person to apply for and obtain a regular bail even while the directions issued in exercise of the power under Section 438 Cr.PC are in operation may become difficult and such application may not be maintainable.
Hon’ble High Court of Andhra Pradesh, then held,
In Para 22,
C.H. Siva Prasad And Others Vs State Of A.P. on 13 August, 1998
On an analysis and a close reading of the decisions referred to above, the following propositions would emerge:
(1) This Court or Court of Session in exercise of its power and jurisdiction under Section 438 Cr.PC may direct the release of the accused person in a given case only for a specific period and direct the accused person to apply for and obtain regular bail. This would necessarily mean that the operation of the order would come to an end immediately after the specified time and the accused person has to necessarily surrender or get arrested so as to enable the accused person to file an application under Section 437 or 439 Cr.PC as the case maybe.
(2) This Court or Court of Session in exercise of its power and discretion under Section 438 of the Code can restrict the operation of directions issued under the said provision at the initial stage and extend the same until further orders;
(3) The Court exercising the power and jurisdiction under Section 438 of the Code is entitled to issue necessary directions directing release of the accused person in the event of his or her arrest without specifying any period; and
(4) The power and jurisdiction of this Court or Court of Session under Section 438 of the Code is not limited or circumscribed in any manner whatsoever requiring to limit the operation of the directions to release the accused person in the event of his or her arrest.
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