REPORTABLE

    IN THE SUPREME COURT OF INDIA

      CRIMINAL APPELLATE JURISDICTION

     CRIMINAL APPEAL NO. 406  OF  2008   

Vaman Narain Ghiya ...Appellant

Versus            

State of Rajasthan  ...Respondent

J U D G M E N T  

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is  to the order passed by a learned Single

Judge of the Rajasthan High Court at Jodhpur, rejecting the application for

bail  filed  by  the  appellant.  An  earlier  application  for  bail  filed  by  the

appellant was also rejected by the High Court by order dated 15.12.2003.

Allegation against the appellant was that he is involved in several nefarious

activities of smuggling of antiques particularly the idols to foreign countries

for heavy sums of money.

2. Stand of  appellant before the High Court was that he was discharged

of offence punishable under Section 413 of the Indian Penal Code, 1860 (in

short the ‘IPC’) by the trial Court and therefore he was facing trial only for

the offence triable by the Court of Magistrate, i.e. under Sections 457, 380

and 411  IPC.  It  was  the  stand  of  the  appellant  that  the  evidence  of  the

prosecution witnesses was not sufficient to secure his conviction in respect

of any of the charges. It was pointed out that evidence of seven witnesses

have  been  recorded  and  none  of  them has  implicated  him in  the  crime.

There  is  no  recovery  from  him  and  other  co-accused  persons  similarly

situated  namely,  Madam  Mohan  Agarwal  and  Manoj  Sharma  had  been

enlarged on bail. Out of 10 cases registered against him, he has been granted

bail in six cases. He is in jail for more than 2 ½ years  and in any case he is

entitled to bail in view of the provisions contained in Section 437 (6) of the

Code of Criminal Procedure, 1973 (in short the ‘Code’). The State opposed

the bail application on the ground that in an identical case the application of

the applicant was rejected by the Jaipur Bench and the matter was carried to

this Court and no interference was made. Further the order of discharge in

respect  of  offence punishable  under  Section  413 IPC was challenged  by

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filing a revision before the High Court. Considering the aforesaid aspects

the prayer for bail was rejected.

3. Learned  counsel  for  the  respondent  submitted  that  though  the

proceedings have been stayed and several cases have been clubbed together,

the  charge  sheet  was  filed  on  27.9.2003  and  on  21.4.2005  the  order  of

discharge  was passed.  Subsequently,  the  order  of  discharge has  been set

aside by the High Court  in S.B. Criminal  Revision No.817 of 2005. The

same  order  of  discharge  was  challenged  before  this  Court  in  Criminal

Appeal  No.1585 of  2007 which  was  dismissed  as  withdrawn.   The only

distinguishing feature pointed out by the appellant to seek reconsideration

of the prayer for bail was the order of discharge. As noted above, the same

was  set  aside  by  the  High  Court.   Appeal  against  the  same  has  been

dismissed as withdrawn.   

4. 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;  

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(b) that any condition imposed by the Magistrate when releasing any person on bail be set aside or modified.”  

(underlined for emphasis)

5. 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”.  

6. 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

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after the investigation has made progress or the charge- sheet is submitted”.  

(Emphasis supplied)

7. 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

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a few days thereafter to enable the accused persons to move the higher court, if they so desire.”

(Emphasis supplied)

8. 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.         

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9. 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.

10. After analyzing the crucial question that 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.

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11. 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.               

12. 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  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

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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.    

13. “Bail” remains an undefined term in the Cr.P.C.  Nowhere else the

term  has  been  statutorily  defined.  Conceptually,  it  continues  to  be

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understood as a right for assertion of freedom against the State imposing

restraints  since the U.N. Declaration of Human Rights of 1948, to which

Indian is a signatory, the concept of bail has found a place within the scope

of human rights. The dictionary meaning of the expression ‘bail’ denotes a

security for appearance of a prisoner for his release.  Etymologically, the

word is derived from an old French verb ‘bailer’ which means to ‘give’ or

‘to deliver’, although another view is that its derivation is from the Latin

term   baiulare, meaning ‘to bear a burden’.  Bail is a conditional liberty.

Strouds’ Judicial Dictionary (Fourth Edition 1971) spells out certain other

details. It states:

“When a man is taken or arrested for felony, suspicion of felony,  indicated  of  felony,  or  any  such  case,  so  that  he  is restrained of his liberty – And being by law bailable, offence surety to those which have authority to bail him, which sureties are bound for him to the Kings use in a certain sums of money, or body for body, that  he shall  appear before the Justices  of Goale delivery at the next sessions etc. Then upon the bonds of these sureties, as is aforesaid, he is bailed, that is to say, set at liberty until the day appointed for his appearance.”

14. Bail  may  thus  be  regarded  as  a  mechanism  whereby  the  State

devolutes upon the community the function of securing the presence of the

prisoners, and at the same time involves participation of the community in

administration of justice.  

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15. Personal  liberty  is  fundamental  and  can  be  circumscribed  only  by

some  process  sanctioned  by  law.  Liberty  of  a  citizen  is  undoubtedly

important  but  this  is  to  balance  with  the  security  of  the  community.  A

balance  is  required to  be  maintained between the personal  liberty of  the

accused  and  the  investigational  right  of  the  police.  It  must  result  in

minimum interference with the personal liberty of the accused and the right

of  the  police  to  investigate  the  case.  It  has  to  dovetail  two  conflicting

demands,  namely, on one hand, the requirements of the society for being

shielded  from the  hazards  of  being  exposed   to  the  mis-adventures  of  a

person alleged to have committed a crime; and on the other, the fundamental

cannon of criminal jurisprudence, viz, the presumption of innocence of an

accused till he is found guilty.  Liberty exists in proportion to wholesome

restrain, the more restraint on others to keep off from us, the more liberty we

have (See A.K. Gopalan v. State of Madras  AIR 1950 SC 1000).

16. The law of bail, like any other branch of law, has its own philosophy,

and occupies  an important  place  in  the  administration  of  justice  and the

concept  of  bail  emerges  from the  conflict  between  the  police  power  to

restrict  liberty of  a man who is  alleged to  have  committed  a crime, and

presumption of innocence in favour of the alleged criminal. An accused is

not detained in custody with the object of punishing him on the assumption

of his guilt.  

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17. Chapter XXXIII consists of Sections 436 to 450.  Sections 436 and

437  provide  for  the  granting  of  bail  to  accused persons  before  trial  and

conviction.   For  the  purposes  of  bail,  offences  are  classified  into  two

categories, that is,  (i)  bailable, (ii)  non-bailable. Section 436 provides for

granting  bail  in  bailable  cases  and Section  437  in  non bailable  cases.  A

person  accused  of  a  bailable  offence  is  entitled  to  be  released  on  bail

pending his trial. In case of such offences, a police officer has no discretion

to refuse bail if the accused is prepared to furnish surety.  The Magistrate

gets jurisdiction to grant bail during the course of investigation when the

accused is produced before him.  In bailable offence there is no question of

discretion for granting bail.  The only choice for the Court  is  as between

taking  a  simple  recognizance  of  the  principal  offender  or  demanding

security with surety. Persons contemplated by this Section cannot be taken

in custody unless they are unable or unwilling to offer bail or to execute

personal bonds. The Court has no discretion, when granting bail under this

section, even to impose any condition except the demanding of security with

sureties.  

18. “Bailable offence” is defined in Clause (b) of Section 2 of the Cr.P.C.

to mean an offence which is shown as bailable in the First Schedule of the

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Cr.P.C., or which is made bailable by any other law for the time being in

force; and “non-bailable offence” means an other offence.

19. While considering an application for bail, detailed discussion of the

evidence and elaborate documentation of the merits is to be avoided. This

requirement  stems  from  the  desirability  that  no  party  should  have  the

impression  that  his  case has been pre-judged.  Existence of  a prima facie

case is only to be considered. Elaborate analysis or exhaustive exploration

of the merits  is  not  required.  (See  Niranjan Singh and Anr. v.  Prabhakar

Rajram Kharote  and  Ors.  AIR  1980  SC  785).  Where  the  offence  is  of

serious nature the question of grant  of bail  has to be decided keeping in

view the nature and seriousness of the offence, character of the evidence

and  amongst  others  the  larger  interest  of  the  public.  (See  State  of

Maharashtra v.  Anand Chaintaman Dighe  AIR 1990 SC 625 and  State  v.

Surendranath Mohanty 1990 (3) OCR 462).

20. We find no merit in this appeal which is dismissed accordingly.    

……….………………………….J. (Dr. ARIJIT PASAYAT)

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……….……………………….…J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, December 12,  2008

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