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CASE NO.: Appeal (crl.)  428 of 2008

PETITIONER: Rekha Patel

RESPONDENT: Pankaj Verma and Ors

DATE OF JUDGMENT: 03/03/2008

BENCH: Dr. ARIJIT PASAYAT & J.M. PANCHAL

JUDGMENT: J U D G M E N T  

CRIMINAL APPEAL NO 428               OF 2008 (Arising out of SLP (Crl.) No.6495 of 2006)

DR. ARIJIT PASAYAT, J

1.      Leave granted.

2.      Challenge in this appeal is to the order passed by the  Division Bench of the Allahabad High Court passed on a  petition under Article 226 of the Constitution of India, 1950  (for short ’The Constitution’).

3.       The appellant was married to respondent No.1 on 12.11.2005.  Alleging that she was being harassed for non-fulfilment of the  demand of dowry, a complaint was filed at Thana, Jawan  Police Station, District Aligarh. On the basis of appellant’s  complaint Crime No.277 of 2006 was registered for alleged  commission of offences punishable under Sections 498A, 323,  504 and 506 of the Indian penal Code, 1860 (for short ’The  IPC’) and Sections 3/4 of the Dowry Prohibition Act, 1961 (for  short ’The Dowry Act’). Respondent Nos.1 to 6 filed a writ  petition for quashing the F.I.R. and for stay of arrest pending  the disposal of the writ petition. The writ petition was filed on  1.11.2006. By the impugned order dated 7.11.2006 the High  Court declined to accept the prayer for stay of arrest of the  respondents but nevertheless passed the following order:

"Considering the facts and circumstances of  the case, in the event the petitioners put in  their appearance or are produced before the  courts below and make application for their  release on bail in case crime No. 277 of 2006  under Sections 498-A, 323, 504 and 506  I.P.C., Police Station Jawan, District Aligarh,  the same shall be heard and disposed of  expeditiously in accordance with law and in  case of petitioner Nos.1 to 5, if the learned  Magistrate does not find fit case to release  them on bail, they shall be released on  personal bond of Rs.30,000/- each and they  shall remain on the same personal bonds till  the final disposal of their bail application, if  any, by the Court of Sessions and that too  within a week thereafter."  

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4.      Learned counsel for the appellant submitted that  virtually there has been exercise of power under Section 438 of  the Criminal Procedure Code, 1973 (in short ’The Cr.P.C.’). It  is pointed out that in the State of U.P., Section 438 Cr.P.C.  has no application.

5.      The learned counsel for respondent Nos.7 to 9 submitted  that the direction given by the High Court is clearly contrary to  the decision of this Court in Adri Dharan Das Vs. State of  West Bengal (2005 (4) SCC 303).

6.      There is no appearance on behalf of respondent Nos.1 to  6 in spite of service of notice.

7.      As rightly contended by the learned counsel for the  appellant, presently Section 438 Cr.P.C. has no application to  the State of U.P. Even otherwise, as noted in Adri Dharan  Das’s case (supra), after surrender of accused and rejection of  his bail application, the protection of the nature granted by  the High Court cannot be given. In this context paragraphs 7,  8, 9 10, 11, 12 and 13 of Adri Dharan Das’s case (supra) are  relevant. They read as follows:

"7. 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 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

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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.

8.      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)

9.      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".  

10.     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,

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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)

11.     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)

12.     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

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"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.            13.     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."

8.      It is, however, submitted by the learned counsel for the  State that pursuant to the direction given by the High Court,  the respondents had moved for bail and have been granted  bail by the learned Sessions Judge concerned.

9.      In view of the aforesaid situation, we decline to interfere  in the appeal; but have considered it necessary to indicate the  correct parameters so that the mistake committed by the High  Court is not repeated.

10.     The appeal is disposed of, subject to the aforesaid  observations.