Nirmal Jeet Kaur Vs. The
State of Madhya Pradesh and Anr  Insc 509 (1
Arijit Pasayat & C.K.
Thakker (Arising out of S.L.P. (Crl.) No. 3917 of 2003 Arijit Pasayat,J.
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
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
"(i) That the petitioner shall make himself available to the police for
investigation in connection with the above offences as and when required in
(ii) That the petitioner shall not, directly or indirectly, tamper with the
(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.
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
(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 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
"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) 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
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 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
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
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 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.