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CASE NO.: Appeal (crl.)  1462 of 2007

PETITIONER: Naresh Kumar Yadav

RESPONDENT: Ravindra Kumar and Ors

DATE OF JUDGMENT: 23/10/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.     1462         OF 2007 (Arising out of SLP (Crl.) No.678 of 2007)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is by the informant to the order  passed by a learned Single Judge of the Patna High Court  disposing of three petitions filed by respondent nos. 1, 2 and  3. By the said petitions, the prayer for protection in terms of  Section 438 of the Code of Criminal Procedure, 1973 (in short  the Code’) was accepted.  

3.      Learned counsel for the appellant submitted that while  allowing the protection in terms of Section 438 of the Code the  High Court has not kept in view the parameters indicated by  this Court for granting such protection. Even otherwise, the  High Court has pre-empted the framing of charges. It is also  pointed out that the High Court has committed several errors  on facts, for example it observed that the accused persons  were not named in the first information report (in short the  ’FIR’) though they were specifically named in the FIR.

4.      Learned counsel for the respondents on the other hand  submitted that without any material to show that the accused  persons were involved in any conspiracy to do away with the  deceased, false implications have been made with mala fide  intent.  The deceased was involved in several cases. It was  submitted that the High Court had taken note of the position  that the materials so far as the respondents are concerned for  alleged conspiracy were contained in paragraphs 39, 41 and  42 of the case diary. It is submitted that learned counsel for  the informant before the High Court had also conceded that  they contained the materials relating to the accused persons.

5.      As rightly contended by learned counsel for the  appellant, granting blanket protection under Section 438 of  the Code is not envisaged. There is also substance in the  submission of learned counsel for the appellant that the High  Court has wrongly noted that the accused persons were not  named in the FIR, in fact they were specifically named.

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6.      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. This 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.

7.      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)

8.      It is clear from a bare reading of the provisions that for

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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".  

9.      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".  

                                       (Emphasis supplied)

10.     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

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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)

11.     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.            12.     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.

13.     After analyzing the crucial question is when a person is  in 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. 14.     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.               

15.     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

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’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 he 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 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 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. 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.                     16.     These aspects have been highlighted in Adri Dharan Das  v. State of West Bengal (2005 (4) SCC 303).

17.     In view of the principles of law as set out above and the  factual scenario involved, we direct that within a period of four  weeks from today the respondents shall surrender before the  concerned Court and shall seek regular bail.

18.     We make it clear that 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.  If an application for bail is moved, the  concerned Court would do well to dispose it of on the day it is  filed. 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 if the  accused-respondents intimate the date on which they purpose  to surrender three days in advance.        19.     It is to be noted that apprehension of the appellant that  framing of charge pre-empted is based on the following  observations of the High Court:

       "If upon the completion of the  investigation charge sheet is submitted against  the petitioners on material other than noticed  presently, the petitioners shall have their  remedies in accordance with law."

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20.     So far as filing of the charge sheet and framing of charge  concerned, needless to say that charge sheet shall be  submitted on the basis of materials collected during  investigation and while considering the charge sheet filed the  concerned Court shall take note of the relevant factors and  decide as to whether on the materials on record framing of  charge against the accused persons is warranted. We make it  clear that we have expressed no opinion in that regard.  

21.     Before we part with the case, we feel it necessary to  indicate that both the accused and the informant referred to  several portions in the case diary.  

22.     Sections 207 and 208 of the Code deal with documents  which are commonly known as police papers, which are to be  supplied to the accused.  The said sections read as follows:

"Section 207- Supply to the accused of  copy of police report and other documents:  In any case where the proceeding has been  instituted on a police report, the Magistrate  shall without delay furnish to the accused, free  of cost, a copy of each of the following:-

       (i)     the police report;

       (ii)    the first information report recorded  under Section 154;

       (iii)   the statements recorded under sub- section (3) of Section 161 of all persons whom  the prosecution proposes to examine as its  witnesses, excluding therefrom any part in  regard to which a request for such exclusion  has been made by the police officer under sub- section (6) of Section 173;

       (iv)    the confessions and statements, if  any, recorded under Section 164;

       (v)     any other document or relevant  extract thereof forwarded to the Magistrate  with the police report under sub-section (5) of  Section 173:

       Provided that the Magistrate may, after  perusing any such part of a statement as is  referred to in clause (iii) and considering the  reasons given by the police officer for the  request, direct that a copy of that part of the  statement or of such portion thereof as the  Magistrate thinks proper, shall be furnished to  the accused:

       Provided further that if the Magistrate is  satisfied that any document referred to in  clause (v) is voluminous, he shall, instead of  furnishing the accused with a copy thereof,  direct that he will only be allowed to inspect it  either personally or through pleader in Court.

Section 208- Supply of copies of statements  and documents to accused in other cases  triable by Court of Session- Where, in a case  instituted otherwise than on a police report, it

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appears to the Magistrate issuing process  under Section 204 that the offence is triable  exclusively by the Court of Session, the  Magistrate shall without delay furnish to the  accused, free of cost, a copy of each of the  following:-

       (i)     the statements recorded under  Section 200 or Section 202, or all persons  examined by the Magistrate;

       (ii)    the statements and confessions, if  any, recorded under Section 161 or Section  164;

       (iii)   any documents produced before the  Magistrate on which the prosecution proposes  to rely:

       Provided that if the Magistrate is satisfied  that any such document is voluminous, he  shall, instead of furnishing the accused with a  copy thereof, direct that he will only be allowed  to inspect it either personally or through  pleader in Court."    

23.    The documents in terms of Sections 207 and 208 are  supplied to make the accused aware of the materials which  are sought to be utilized against him. The object is to enable  the accused to defend himself properly. The idea behind the  supply of copies is to put him on notice of what he has to meet  at the trial. The effect of non-supply of copies has been  considered by this Court in Noor Khan v. State of Rajasthan  (AIR 1964 SC 286) and Shakila Abdul Gafar Khan (Smt.) v.  Vasant Raghunath Dhoble and Anr. (2003 (7) SCC 749). It was  held that non-supply is not necessarily prejudicial to the  accused. The Court has to give a definite finding about the  prejudice or otherwise. Even the supervision notes cannot be  utilized by the prosecution as a piece of material or evidence  against the accused. If any reference is made before any court  to the supervision notes, as has noted above they are not to be  taken note of by the concerned court.  As many instances have  come to light when the parties, as in the present case, make  reference to the supervision notes, the inevitable conclusion is  that they have unauthorized access to the official records.            24.     Further, it is baffling to note that the accused and  informant referred to particular positions of case diary. At the  stage the bail applications were heard by the High Court,  legally they could not have been in a position to have access to  the same.  The papers which are to be supplied to the accused  have been statutorily prescribed. The Courts should take  serious note when the accused or the informant refers to the  case diary to buttress a stand.  

25.     The appeal is disposed of accordingly.