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CASE NO.: Appeal (crl.)  249 of 2007

PETITIONER: D.K. Ganesh Babu

RESPONDENT: P.T. Manokaran & Ors

DATE OF JUDGMENT: 23/02/2007

BENCH: Dr. ARIJIT PASAYAT & R.V. RAVEENDRAN

JUDGMENT: J U D G M E N T (Arising our of SLP(Crl.) NO. 3374 of 2006)

Dr. ARIJIT PASAYAT, J.

        Leave granted.          Challenge in this appeal is to the order passed by a learned  Single Judge of the Madras High Court while dealing with an  application filed in terms of Section 438 of the Code of Criminal  Procedure, 1973 (in short the ’Code’) .This Appeal has been filed  by the complainant.  The applicants before the High Court who are  respondents 1to 3 herein, filed the application as they were  apprehending arrest in crime No. 1358 of 2006 which was under  investigation of the Inspector of the concerned circle.  It was  alleged in the complaint that because of the dowry demands, the  victim committed suicide and the accused-respondent Nos.1 to 3  apprehended arrest for the alleged offence under Section 304 B of  the Indian Penal Code, 1860 (in short the ’IPC’) and Section  4 of  the Dowry Prohibition Act, 1961(in short the ’Act’).

       The application was disposed of by the learned Single judge  inter-alia with the following observations and directions: i.      each of them should execute a bond for a sum  of Rs. 25.000/- (Rupees Twenty Five Thousand  only) together with two sureties each for the  like sum to the satisfaction of XVII  Metropolitan Magistrate Saidapet, Chennai.

ii.     The first petitioner shall appear before the  respondent police for a period of two weeks  daily at 10.30.a.m. and thereafter the first  petitioner shall appear before the respondent  police as and when required.

iii.    The petitioners 2 and 3 shall report before the  respondent police for a period of three days  from l0.30. a.rn. to 12. 30. noon everyday and  thereafter they shall be available for  interrogations as and when required.

iv.   The petitioners 1 and 2, in consultation with  the first accused, who is the husband of the  victim in this case, shall take all necessary  steps to band ever all the articles belonging to

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the victim viz. gold and diamond jewellery,  house held articles including the silver articles  and the cash to the father of the victim within  a period of two weeks after our execution of  this order.

The petitioners shall surrender before the court  referred to above for executing the bond and  furnishing sureties within two weeks from the date  of receipt of copy of this order, falling which, this  order shall stand cancelled."

       The only point urged in support of the appeal by the  informant \026appellant is that the parameters to be kept in view,  while dealing with an application under Section 438 of the  Criminal Procedure Code, 1973 (in short the ’Code’), had not been  kept in view.  It was submitted that actually the respondents have  been granted bail without surrender, since the terms for release  have been stipulated in the order itself.   

Learned counsel for the respondent Nos. 1 to 3 on the other  hand submitted that the materials on record clearly justified  passing of the order as done, and there is nothing illegal in the  order to warrant any interference.  Further the respondents have  already surrendered and have been granted bail on the terms  stipulated by Learned Single Judge.  

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.  The apex Court in  Balachand Jain v. State of Madhya Pradesh  (AIR 1977 SC 366)  has described the expression ’anticipatory bail’ as a 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 an 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

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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".                                          (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

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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.

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 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.

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       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 an 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.  

The aforesaid aspects have been highlighted in Adri Dharan  Das  v. State of West Bengal  (2005(4)SCC 303).

In view of what has been stated above some of the directions,  given by learned Single Judge, as quoted above, are not in line  with what has been stated in Adri Dharan Das’s case (supra).   Accordingly we modify the directions. Since the respondents have  already surrendered and have been granted bail in terms of the  High Court’s directions, they shall surrender before the concerned  court and shall move for bail in terms of Section 439 of the Code  within four weeks from today.  On that being done the case shall  be considered in its proper perspective uninfluenced by the fact we  have disapproved stipulation of conditions by the High Court. The  concerned court shall deal with the matter appropriately.  It is  brought to our notice that the husband of the deceased has  already been released on bail after his surrender.  The effect  and/or relevance of that order shall be duly considered by the  concerned court while dealing with the application for bail to be  filed within stipulated time.

The appeal is allowed to the aforesaid extent.