Under Section 438 of the Code of Criminal Procedure, 1973, what approach must courts adopt while interpreting restrictions on the grant of anticipatory bail?

Courts should lean against the imposition of unnecessary restrictions on the scope of Section 438 that are not found in the provision itself, since denial of bail amounts to deprivation of personal liberty, and an over-generous infusion of constraints not contemplated by the legislature would make the provision constitutionally vulnerable.

Central Goods and Services Tax Act, 2017 — s.69 — Anticipatory bail — Sine qua non — Communication of order — Constitution of India — Article 226 — Interim relief — Ancillary to main relief — Code of Criminal Procedure, 1973 — s.438 — Constitution of India — Article 226 — Interim relief only ancillary to main relief — Extended to pre-arrest bail — Held: It is a settled position of law that a petition under Article 226 of the Constitution cannot be used for the sole purpose of granting interim relief when the petition itself is held not maintainable, since an interim relief can only be granted in aid of and ancillary to the main relief; supplanting this principle to applications seeking pre-arrest bail, while dismissing such a petition on the ground that it is not maintainable, the High Court or the Sessions Court cannot extend or grant protection in the nature of interim relief that could be granted during the pendency of the application. (¶8, 9, 10, 11, 12) Central Goods and Services Tax Act, 2017 — s.69 — Order authorising arrest, sine qua non for anticipatory bail — Must be communicated — Held further: An order under Section 69 of the CGST Act authorising arrest is a sine qua non to maintain an application seeking anticipatory bail, since it is only upon such an order being passed that the person becomes an accused open to arrest; by extension of the principles of natural justice and fairness in administrative action, communication of such an order to the person sought to be arrested must be read into the statute as mandatory, failing which a catch-22 situation would arise where the accused can neither apply for anticipatory bail nor become aware of the order to challenge it. (¶16, 17, 18, 21, 22) Code of Criminal Procedure, 1973 — s.438 — Personal liberty — Restrictions not to be read in — Held further: Since denial of bail amounts to deprivation of personal liberty, courts must lean against the imposition of unnecessary restrictions on the scope of Section 438 that are not found in the provision itself, as an over-generous infusion of constraints not contemplated by the legislature would make the provision constitutionally vulnerable, the right to personal freedom not being made to depend on compliance with unreasonable restrictions. (¶19)

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