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CASE NO.: Appeal (crl.)  326 of 2005

PETITIONER: Adri Dharan Das                                                  

RESPONDENT: State of West Bengal                                             

DATE OF JUDGMENT: 21/02/2005

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No.250 of 2004)  

ARIJIT PASAYAT, J.                   

Leave granted.   

       Refusal by a Division Bench of the Calcutta High Court  to accept  prayer made by the appellant to extend the protection available under  Section 438 of the Code of Criminal Procedure, 1973 (in short the  ’Code’)is assailed by him.  A brief reference to the factual position  would suffice.

       Complaint was lodged by one Dayaram Das in the Court of Chief  Judicial Magistrate, Alipore, Calcutta (in short ’CJM’) alleging  commission of various offences more particularly those covered under  Sections 406, 467, 468,471 and 420 of the Indian Penal Code, 1860 (in  short the ’IPC’).  This complaint was filed against the appellant and  five others. It was claimed that the complainant Dayaram Das, who was  the President of Calcutta Branch/Temple situated at 3C, Albert Road,  Calcutta and manager of the premises at 22, Gurusaday Road, Calcutta  was appointed by the International Society for Krishna Consciousness  (in short the ’ISKCON’) Bureau in accordance with Rules and  Regulations.  Appellant was the previous President, who was suspended  by the Bureau on 2nd March, 2001 and was removed on 17th March, 2002.   The other persons named in the complaint (accused Nos. 2 to 6) were  stated to be his associates. Alleging that the accused persons had  committed various offences, prayer was made to Learned Judicial  Magistrate for taking action in terms of Section 156(3) of the Code.   The CJM on 13th May, 2002 directed the officer in charge of the  Ballygunj Police Station to investigate after taking the petition of  complaint as FIR and to submit report before Learned Sub-Divisional  Judicial Magistrate (in short the ’SDJM’).  The case was registered as  Ballygunj P.S. Case no. 81 dated 3.6.2002 in Bollygunj Police Station.  

    According to the appellant they were victims of a conspiracy.  Large number of cases were pending between the parties which have been  filed.  Having failed in their attempt to get any relief from the Civil  Courts, the complainant and his associates falsely instituted the  complaint.  An application in terms of Section 438 of the Code was  filed before the Calcutta High Court which by the impugned order was

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rejected.   

       Mr. Gopal Subramanium, learned Senior Counsel appearing for the  appellant submitted that without properly appreciating the factual  background and the points involved in the application, the prayer  should not have been rejected summarily. Two of the accused persons  have been granted protection in terms of Section 438 of the Code by the  Division Bench of the Calcutta High Court.  The appellant is always  willing to cooperate in the investigation.  The efforts of the  respondent are to humiliate the appellant in public and cause damage to  his reputation.  In the aforesaid background it is submitted that a  case for interference is made out. It was submitted that in case the  prayer for protection in terms of Section 438 of the Code is not  accepted the appellant may be permitted to surrender before the  concerned Court on 17/3/2005 and apply for bail. It was prayed that  directions may be given for early disposal of the applications by the  said Court and in case the prayer is not accepted by the lower Court,  by the District and Sessions Court who shall be moved, it was submitted  that the appellant would like to come to Calcutta on 10th of March, 2005  and is willing to co-operate in the investigation but he should not be  arrested till the disposal of the application for bail before learned  SDJM, Alipore.

In response, learned counsel appearing for the respondent submitted  that there is no provision in the Code for the direction not to arrest  and if such a direction is given it would be contrary to law. It was  also submitted that the appellant has not made out any case for  interference and his conduct is not above board.  Considering the  serious nature of the allegations, it is not a fit case where any order  in terms of Section 438 of the Code can be passed.        The appellant  has abused process of law.  He had not been granted protection by the  Karnataka High Court which he mis-utilized. The two co-accused who had  been granted protection by the High Court are not co-operating in the  investigation. It is, therefore, submitted that the application of the  appellant has been rightly rejected by the impugned order.  By way of  clarification Mr. Subramaniam submitted that the order passed by the  Karnataka High Court has not been violated.  In fact, by order dated  20.10.2003, the learned Single Judge of the Karnataka High Court has  clarified that mere filing of charge sheet does not mean that the  petitioner has no right to file anticipatory bail application before  the concerned competent court and, therefore, the application was filed  before the Calcutta High Court.

The facility which Section 438 of the Code gives is generally  referred to as ’anticipatory bail’. This expression which was used by  the Law Commission in its 41st Report is neither used in the section nor  in its marginal note.  But the expression ’anticipatory bail’ is a  convenient mode of indication that it is possible to apply for bail in  anticipation of arrest.  Any order of bail can be effective only from  the time of arrest of the accused.  Wharton’s Law Lexicon explains  ’bail’ as ’to set at liberty a person arrested or imprisoned, on  security being taken for his appearance.’ Thus bail is basically  release from restraint, more particularly the custody of Police. The  distinction between an ordinary order of bail and an order under  Section 438 of the Code is that whereas the former is granted after  arrest, and therefore means release from custody of the Police, the  latter is granted in anticipation of arrest and is therefore effective  at the very moment of arrest.(See: Gur Baksh Singh v. State of Punjab  1980(2) SCC 565). Section       46(1) of        the Code, which deals with  how arrests are to be made, provides that in making an arrest the  Police officer or other person making the same "shall actually touch or  confine the body of the person to be arrested, unless there be a  submission to the custody by word or action".  The order under Section  438 of the Code is intended to confer conditional immunity from the  touch as envisaged by Section 46(1) of the Code or any confinement.  

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The apex Court in Balachand Jain v. State of Madhya Pradesh  (AIR 1977  SC 366) has described the expression ’anticipatory bail’ as misnomer.   It is well-known that bail is ordinary manifestation of arrest, that  the Court thinks first to make an order is that in the event of arrest  a person shall be released on bail. Manifestly there is no question of  release on bail unless the accused is arrested, and therefore, it is  only on an arrest being effected the order becomes operative. The power  exercisable under Section 438 is somewhat extraordinary in character  and it is only in exceptional cases where it appears that the person  may be falsely implicated or where there are reasonable grounds for  holding that a person accused of an offence is not likely to otherwise  misuse his liberty then power is to be exercised under Section 438.   The power being of important nature it is entrusted only to the higher  echelons of judicial forums, i.e. the Court of Session or the High  Court. It is the power exercisable in case of an anticipated accusation  of non-bailable offence.  The object which is sought to be achieved by  Section 438 of the Code is that the moment a person is arrested, if he  has already obtained an order from the Court of Session or High Court,  he shall be released immediately on bail without being sent to jail.

Sections 438 and 439 operate in different fields.  Section 439 of  the Code reads as follows: "439. (1) A High Court or Court of Session may  direct -  (a) that any person accused of an offence and in  custody be released on bail, and if the offence is  of the nature specified in sub-section (3) of  Section 437, may impose any condition which it  considers necessary for the purposes mentioned in  that sub-section;  (b) that any condition imposed by the Magistrate  when releasing any person on bail be set aside or  modified."                                          (underlined for emphasis)

It is clear from a bare reading of the provisions that for making  an application in terms of Section 439 of the Code a person has to be  in custody. Section 438 of the Code deals with "Direction for grant of  bail to person apprehending arrest".  

In Salauddin Abdulsamad Shaikh v. State of Maharashtra (AIR 1996  SC 1042) it was observed as follows:                  "Anticipatory bail is granted in anticipation of  arrest in non-bailable cases, but that does not mean  that the regular court, which is to try the  offender, is sought to be bypassed and that is the  reason why the High Court very rightly fixed the  outer date for the continuance of the bail and on  the date of its expiry directed the petitioner to  move the regular court for bail. That is the correct  procedure to follow because it must be realised that  when the Court of Sessions or the High Court is  granting anticipatory bail, it is granted at a stage  when the investigation is incomplete and, therefore,  it is not informed about the nature of evidence  against the alleged offender. It is, therefore,  necessary that such anticipatory bail orders should  be of a limited duration only and ordinarily on the  expiry of that duration or extended duration the  court granting anticipatory bail should leave it to  the regular court to deal with the matter on an  appreciation of evidence placed before it after the  investigation has made progress or the charge-sheet  is submitted".

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                                       (Emphasis supplied)

In K.L. Verma v. State and Anr. (1996 (7) SCALE 20) this Court  observed as follows:

"This Court further observed that anticipatory  bail is granted in anticipation of arrest in non- bailable cases, but that does not mean that the  regular court, which is to try the offender, is  sought to be bypassed. It was, therefore, pointed  out that it was necessary that such anticipatory  bail orders should be of a limited duration only and  ordinarily on the expiry of that duration or  extended duration the court granting anticipatory  bail should leave it to the regular court to deal  with the matter on an appreciation of evidence  placed before it after the investigation has made  progress or the charge-sheet is submitted. By this,  what the Court desired to convey was that an order  of anticipatory bail does not enure till the end of  trial but it must be of limited duration as the  regular court cannot be bypassed. The limited  duration must be determined having regard to the  facts of the case and the need to give the accused  sufficient time to move the regular court for bail  and to give the regular court sufficient time to  determine the bail application. In other words, till  the bail application is disposed of one way or the  other the court may allow the accused to remain on  anticipatory bail. To put it differently,  anticipatory bail may be granted for a duration  which may extend to the date on which the bail  application is disposed of or even a few days  thereafter to enable the accused persons to move the  higher court, if they so desire."

                               (Emphasis supplied)

In Nirmal Jeet Kaur v. State of M.P. and Another (2004 (7) SCC  558) and Sunita Devi v. State of Bihar and Anr. Criminal Appeal arising  out of SLP (Crl.) No. 4601 of 2003 disposed of on 6.12.2004 certain  grey areas in the case of K.L. Verma’s case (supra) were noticed. The  same related to the observation "or even a few days thereafter to  enable the accused persons to move the Higher Court, if they so  desire". It was held that the requirement of Section 439 of the Code is  not wiped out by the above observations.  Section 439 comes into  operation only when a person is "in custody".  In K.L. Verma’s case  (supra) reference was made to Salauddin’s case (supra). In the said  case there was no such indication as given in K.L. Verma’s case  (supra),  that a few days can be granted to the accused to move the  higher Court if they so desire.  The statutory requirement of Section  439 of the Code cannot be said to have been rendered totally  inoperative by the said observation.            In view of the clear language of Section 439 and in view of the  decision of this Court in Niranjan Singh and Anr. v. Prabhakar Rajaram  Kharote and Ors. (AIR 1980 SC 785), there cannot be any doubt that  unless a person is in custody, an application for bail under Section  439 of the Code would not be maintainable. The question when a person  can be said to be in custody within the meaning of Section 439 of the  Code came up for consideration before this Court in the aforesaid  decision.

After analyzing the crucial question is when a person is in

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custody, within the meaning of Section 439 of the Code, it was held in  Nirmal Jeet Kaur’s case (supra) and Sunita Devi’s case (supra) that for  making an application under Section 439 the fundamental requirement is  that the accused should be in custody. As observed in Salauddin’s case  (supra) the protection in terms of Section 438 is for a limited  duration during which the regular Court has to be moved for bail.   Obviously, such bail is bail in terms of Section 439 of the Code,  mandating the applicant to be in custody.  Otherwise, the distinction  between orders under Sections 438 and 439 shall be rendered meaningless  and redundant.

If the protective umbrella of Section 438 is extended beyond what  was laid down in Salauddin’s case (supra) the result would be clear  bypassing of what is mandated in Section 439 regarding custody.  In  other words, till the applicant avails remedies upto higher Courts, the  requirements of Section 439 become dead letter. No part of a statute  can be rendered redundant in that manner.               

       Section 438 is a procedural provision which is concerned with the  personal liberty of an individual who is entitled to plead, innocence,  since he is not on the date of application for exercise of power under  Section 438 of the Code convicted for the offence in respect of which  he seeks bail. The applicant must show that he has ’reason to believe’  that he may be arrested in a non-bailable offence.  Use of the  expression’reason to believe’ that he may be arrested in a non-bailable  offence.  Use of the expression ’reason to believe’ shows that the  applicant may be 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 h has some sort of vague apprehension that some  one is going to make an accusation against him in pursuance of which he  may be arrested.  Grounds on which the belief on the applicant is based  that he may be arrested in non-bailable offence must be capable of  being examined.  If an application is made to the High Court or the  Court of Session, it is for the Court concerned to decide whether a  case has been made out of for granting the relief sought.  The  provisions cannot be invoked after arrest of the accused.  A blanket  order should not be generally passed.  It flows from the very language  of the section which requires the applicant to show that he has reason  to believe that he may be arrested.  A belief can be said to be founded  on reasonable grounds only if there is something tangible to go by on  the basis of which it can be said that the applicant’s apprehension  that he may be arrested is genuine.  Normally a direction should not  issue to the effect that the applicant shall be released on bail  "whenever arrested for whichever offence whatsoever".  Such ’blanket  order’ should not be passed as it would serve as a blanket to cover or  protect any and every kind of allegedly unlawful activity.  An order  under Section 438 is a device is 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.  On the facts of the  case, considered in the background of legal position set out above,  this does not prima facie appear to be a case where any order in terms  of Section 438 of the Code can be passed.                     The next question is whether a Court can pass an interim order  not to arrest the applicant, where an application under Section 438 of  the Code is pending disposal.   

In the instant case no application for protection in terms of  Section 438 of the Code is pending.  What the appellant can do after  surrendering to custody on 17th  March, 2005, is to file an application  in terms of Section 437 or 439, as the case may be.  Even otherwise,  the direction which a Court can issue under Section 438 of the Code is  that in the event of arrest of an accused on an accusation of  committing a non-bailable offence, he shall be released on bail subject  to such conditions as the Court may deem fit to impose.  An application

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under Section 438 of the Code can be moved only by a person who has not  already been arrested.  Once he is arrested, his remedy is to move the  concerned Court either under Section 437 or Section 439 of the Code. In  the very nature of the direction which the Court can issue under  Section 438 of the Code, it is clear that the direction is to be issued  only at the pre-arrest stage. The direction becomes operative only  after arrest.   The condition precedent for the operation of the  direction issued is arrest of the accused. This being so, the  irresistible inference is that while dealing with an application under  Section 438 of the Code the Court cannot restrain arrest.

       Ordinarily, arrest is a part of the process of investigation  intended to secure several purposes.  The accused may have to be  questioned in detail regarding various facets of motive, preparation,  commission and aftermath of the crime and the connection of other  persons, if any, in the crime.  There may be circumstances in which the  accused may provide information leading to discovery of material facts.  It may be necessary to curtail his freedom in order to enable the  investigation to proceed without hindrance and to protect witnesses and  persons connected with the victim of the crime, to prevent his dis- appearance to maintain law and order in the locality.  For these or  other reasons, arrest may become inevitable part of the process of  investigation.  The legality of the proposed arrest cannot be gone into  in an application under Section 438 of the Code.  The role of the  investigator is well-defined and the jurisdictional scope of  interference by the Court in the process of investigation is limited.   The Court ordinarily will not interfere with the investigation of a  crime or with the arrest of accused in a cognizable offence.    An  interim order restraining arrest, if passed while dealing with an  application under Section 438 of the Code will amount to interference  in the investigation, which cannot, at any rate, be done under Section  438 of the Code.  

       We make it clear that while upholding the rejection of the prayer  in terms of Section 438 of the Code, we are not expressing any opinion  on the merits of the case.  When the bail application is moved in terms  of Section 439 of the Code before the concerned Court the same shall be  considered in its proper perspective in accordance with law.  Let the  appellant, as submitted by learned counsel for him, appear in the Court  of learned SDJM, Alipore on 17th March, 2005.  If an application for  bail is moved, the learned SDJM would do well to dispose it of on the  day it is filed.  In case the prayer for bail is rejected and as stated  by learned counsel for the appellant an application for bail is filed  before learned District and Sessions Judge, 24, Parganas South, West  Bengal on 17th March, 2005, the said Court would do well to dispose of  the application as early as practicable, preferably by 19th of March,  2005.  If it is filed at a later date, the learned District and  Sessions Judge would make an effort to dispose it of within three days  of its filing.  Learned counsel appearing for the State has  undertaken that all relevant records shall be produced before the Court  dealing with the bail application and no adjournment shall be asked for  on the ground of non-availability of records.

Appeal is accordingly disposed of with no order as to costs.