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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.
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
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
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
'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."
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
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.
