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CASE NO.: Appeal (crl.)  978 of 2004

PETITIONER: Nirmal Jeet Kaur                                                 

RESPONDENT: The State of Madhya Pradesh and Anr.             

DATE OF JUDGMENT: 01/09/2004

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T (Arising Out of S.L.P. (Crl.) No. 3917 of 2003  

ARIJIT PASAYAT,J.

       Leave granted.

       Protection to the respondent no.2 Dr. Harminder Singh Bhawara  under Section 438 of the Code of Criminal Procedure 1973 (in short the  ’Code’) is assailed by the appellant.  

A brief reference to the factual aspects would suffice.

       Appellant and respondent no.2 entered into a wedlock on  11.5.1997. Alleging that she has been subjected to physical and mental  torture for not satisfying the demand for dowry, a complaint was lodged  at Women Police Station, Jabalpur (Madhya Pradesh) on 24.2.2003 by the  appellant. She alleged commission of offences punishable under Sections  498A and 506 read with Section 34 of the Indian Penal Code 1860 (for  short the ’IPC’) and Sections 3 and 4 of the Dowry Prohibition Act,  1961 (in short the ’Dowry Act’) against respondent no.2 and some of his  relatives.  On 29.4.2003 respondent no.2 filed an application for  protection in terms of Section 438 of the Code before the High Court of  Madhya Pradesh, Jabalpur Bench, which was registered as Misc. Crl. Case  No. 2890/2003.  By order dated 15.5.2003 the High Court disposed of the  application to the following directions:

"(i)    That the petitioner shall make himself  available to the police for investigation in  connection with the above offences as and  when required in this behalf;

(ii)    That the petitioner shall not, directly or  indirectly, tamper with the prosecution  evidence.

(iii) The petitioner may approach the         appropriate court within the period of four  weeks for regular bail."     

       It appears that respondent no.2 applied for regular bail before  the Judicial Magistrate, First Class, Jabalpur, which was rejected.  On  5.6.2003 prayer for bail was made before the Sessions Court, Jabalpur,  but that also was rejected. On 7.6.2003 respondent no.2 filed an  application in terms of Section 439 of the Code before the High Court.  

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On 12.6.2003 the matter was listed before the vacation Judge.  The  matter was adjourned to 16.6.2003 when the impugned order was passed.   The same reads as follows:

"This Court on 15.5.2003 in M. Cr. C.No. 2890/2003  allowed the application for bail for a period of  four weeks.  Looking to the nature of the case, the  application of ad-interim anticipatory bail is  hereby allowed on the condition of furnishing a  personal bond of Rs.20,000/- with one surety of the  like amount to the satisfaction of the station  Officer In-charge concerned."

       According to the appellant M. Cr. C no.3697/2003 which was filed  in terms of Section 439 of the Code is still pending.  The case diary  was called for and in M.(Crl.)P. No.2734/2003 the order as quoted above  has been passed.   

According to the learned counsel for the appellant the impugned  order is clearly at variance with the earlier order dated 15.5.2003.   By the said order the application in terms of Section 438 of the Code  was disposed of and four weeks time was granted to respondent no.2 for  making application in terms of Section 439 of the Code. The period was  over by the time the High Court passed the subsequent order. It is a  blanket order extending the ad-interim arrangement indicated in the  earlier order.  Since the period indicated in the earlier order was  over and the respondent no.2 is not in custody in terms of Section 439  of the Code, the order is clearly not maintainable.  Learned counsel  for the State of Madhya Pradesh supported the stand of the appellant.   

Per contra, learned counsel for the respondent No. 2 submitted  that in view of what has been stated in K.L. Verma v. State and Another  (1996 (7) SCALE 20), protection given by the High Court is clearly in  order.  It was submitted that for the purpose of making an application  in terms of Section 439 of the Code, when the same is pursuant to an  order passed on application under Section 438 of the Code, it is not  necessary that the applicant should be in custody.

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 Bal Chand Jain v. State of  M.P. (1976) 4 SCC 572) it was observed that the expression  "anticipatory bail" is really a misnomer because what Section 438  contemplates is not an anticipator bail, but merely an order directing  the release of an accused on bail on the event of his arrest.  It is,  therefore, manifest that there is no question of bail unless a person  is arrested in connection with a non-bailable offence by the police.   The distinction between an order in terms of Section 438 and that in  terms of Section 439 is that the latter is passed after arrest whereas

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former is passed in anticipation of arrest and become effective at the  very moment of arrest. (See Gur Baksh Singh v. State of Punjab (1980) 2  SCC 565).        

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’s case (supra) 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)

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       The reference to this Court’s observation as quoted above was to  Salauddin’s case (supra).

The grey area according to us is the following part of the  judgment in K.L. Verma’s case (supra) "or even a few days thereafter to  enable the accused persons to move the Higher Court, if they so  desire".   

       Obviously, 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 crucial question is when a person is in custody, within the  meaning of Section 439 Criminal Procedure Code? When he is in duress  either because he is held by the investigating agency or other police  or allied authority or is under the control of the court having been  remanded by judicial order, or having offered himself to the court’s  jurisdiction and submitted to its orders by physical presence. No  lexical dexterity nor precedential profusion is needed to come to the  realistic conclusion that he who is under the control of the court or  is in the physical hold to an officer with coercive power is in custody  for the purpose of Section 439. The word is of elastic semantics but  its core meaning is that the law has taken control of the person. The  equivocatory quibblings and hide-and-seek niceties sometimes heard in  court that the police have taken a man into informal custody but not  arrested him, have detained him for interrogation but not taken him  into formal custody and other like terminological dubieties are unfair  evasions of the straightforwardness of the law.

Since the expression "custody" though used in various provisions  of the Code, including Section 439, has not been defined in the Code,  it has to be understood in setting in which it is used and the  provisions contained in Section 437 which relates to jurisdiction of  the Magistrate to release an accused on bail under certain  circumstances which can be characterized as "in custody" in a generic  sense. The expression "custody" as used in Section 439, must be taken  to be a compendious expression referring to the events on the happening  of which Magistrate can entertain a bail petition of an accused.   Section 437 envisages, inter alia, that the Magistrate may release an  accused on bail, if such accused appears before the Magistrate. There  cannot be any doubt that such appearance before the Magistrate must be  physical appearance and the consequential surrender to the jurisdiction  of the Court of the Magistrate.

In Black’s Law Dictionary by Henry Campbell Black, M.A. (Sixth  Edn.), the expression "custody" has been explained in the following  manner:

".....The term is very elastic and may mean

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actual imprisonment or physical detention....within  statute requiring that petitioner be ’in custody’ to  be entitled to federal habeas corpus relief does not  necessarily mean actual physical detention in jail  or prison but rather is synonymous with restraint of  liberty....Accordingly, persons on probation or  parole or released on bail or on own recognizance  have been held to be ’in custody’ for purposes of  habeas corpus proceeding."

It is to be noted that in K.L. Verma’s case (supra) the Court  only indicated that time may be extended to "move" the higher court.   In Black’s Law Dictionary the said expression has been explained as  follows:

"Move: to make an application to a Court for a rule  or order, or to take action in any matter. The term  comprehends all things necessary to be done by a  litigant to obtain an order of the Court directing  the relief sought."

In Salauddin’s case (supra) also this Court observed that the  regular Court has to be moved for bail. Obviously, an application under  Section 439 of the Code must be in a manner in accordance with law and  accused seeking remedy under Section 439 must ensure that it would be  lawful for the Court to deal with the application.  Unless the  applicant is in custody his making application only under Section 439  of the Code will not confer jurisdiction on the Court to which the  application is made.  The view regarding extension of time to "move"  the higher Court as culled out from the decision in K.L. Verma’s case  (supra) shall have to be treated as having been rendered per incuriam,  as no reference was made to the prescription in Section 439 requiring  the accused to be in custody.  In State through S.P. New Delhi v. Ratan  Lal Arora (2004) 4 SCC 590) it was held that where in a case the  decision has been rendered without reference to statutory bars, the  same cannot have any precedent value and shall have to be treated as  having been rendered per incuriam. The present case stands at par, if  not, on a better footing.  The provisions of Section 439 do not appear  to have been taken note of.  

"Incuria" literally means "carelessness".  In practice per  incuriam is taken to mean per ignoratium. English Courts have developed  this principle in relaxation of the rule of stare decisis.  The  "quotable in law", as held in Young v. Bristol Aeroplane Co. Ltd.  (1944) 2 All E.R. 293, is avoided and ignored if it is rendered, "in  ignoratium of a statute or other binding authority".  Same has been  accepted, approved and adopted by this Court while interpreting Article  141 of the Constitution of India, 1950 (in short the ’Constitution’)  which embodies the doctrine of precedents as a matter of law.  The  above position was highlighted in State of U.P. and another v.  Synthetics and Chemicals Ltd. and another (1991) 4 SCC 139). To  perpetuate an error is no heroism.  To rectify it is the compulsion of  the judicial conscience.          

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

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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.               

In the aforesaid background, the protection given to the  respondent no.2 by the High Court while the application under Section  439 of the Code is pending is clearly unsustainable. Respondent no.2  would surrender to custody as required in law so that his application  under Section 439 of the Code can be taken for disposal.  We are very  sure that the High Court will take up the matter for disposal in  accordance with law immediately after the respondent no.2 is in custody  as required under Section 439 of the Code. We make it clear that we are  not expressing any opinion on the merits of the matter.      

       The appeal is allowed to the extent indicated.