Adri Dharan
Das Vs. State of West
Bengal [2005] Insc
108 (21 February 2005)
Arijit
Pasayat & S.H. Kapadia
(Arising
out of SLP (Crl.) No.250 of 2004) ARIJIT PASAYAT, J.
Leave
granted.
Refusal
by a Division Bench of the Calcutta High Court to accept prayer made by the
appellant to extend the protection available under Section 438 of the Code of
Criminal Procedure, 1973 (in short the 'Code')is assailed by him. A brief
reference to the factual position would suffice.
Complaint
was lodged by one Dayaram Das in the Court of Chief Judicial Magistrate, Alipore,
Calcutta (in short 'CJM') alleging commission of various offences more
particularly those covered under Sections 406, 467, 468,471 and 420 of the
Indian Penal Code, 1860 (in short the 'IPC'). This complaint was filed against
the appellant and five others. It was claimed that the complainant Dayaram Das,
who was the President of Calcutta Branch/Temple situated at 3C, Albert Road,
Calcutta and manager of the premises at 22, Gurusaday Road, Calcutta was appointed
by the International Society for Krishna Consciousness (in short the 'ISKCON')
Bureau in accordance with Rules and Regulations. Appellant was the previous
President, who was suspended by the Bureau on 2nd March, 2001 and was removed on 17th March, 2002.
The
other persons named in the complaint (accused Nos. 2 to 6) were stated to be
his associates. Alleging that the accused persons had committed various
offences, prayer was made to Learned Judicial Magistrate for taking action in
terms of Section 156(3) of the Code.
The
CJM on 13th May, 2002 directed the officer in charge of the Ballygunj Police
Station to investigate after taking the petition of complaint as FIR and to
submit report before Learned Sub-Divisional Judicial Magistrate (in short the
'SDJM'). The case was registered as Ballygunj P.S. Case no. 81 dated 3.6.2002
in Bollygunj Police Station.
According
to the appellant they were victims of a conspiracy.
Large number
of cases were pending between the parties which have been filed. Having failed
in their attempt to get any relief from the Civil Courts, the complainant and
his associates falsely instituted the complaint. An application in terms of
Section 438 of the Code was filed before the Calcutta High Court which by the
impugned order was rejected.
Mr. Gopal
Subramanium, learned Senior Counsel appearing for the appellant submitted that
without properly appreciating the factual background and the points involved in
the application, the prayer should not have been rejected summarily. Two of the
accused persons have been granted protection in terms of Section 438 of the
Code by the Division Bench of the Calcutta High Court. The appellant is always
willing to cooperate in the investigation. The efforts of the respondent are to
humiliate the appellant in public and cause damage to his reputation. In the
aforesaid background it is submitted that a case for interference is made out.
It was submitted that in case the prayer for protection in terms of Section 438
of the Code is not accepted the appellant may be permitted to surrender before
the concerned Court on 17/3/2005 and apply for bail. It was prayed
that directions may be given for early disposal of the applications by the said
Court and in case the prayer is not accepted by the lower Court, by the
District and Sessions Court who shall be moved, it was submitted that the
appellant would like to come to Calcutta on 10th of March, 2005 and is willing
to co-operate in the investigation but he should not be arrested till the
disposal of the application for bail before learned SDJM, Alipore.
In
response, learned counsel appearing for the respondent submitted that there is
no provision in the Code for the direction not to arrest and if such a
direction is given it would be contrary to law. It was also submitted that the
appellant has not made out any case for interference and his conduct is not
above board. Considering the serious nature of the allegations, it is not a fit
case where any order in terms of Section 438 of the Code can be passed. The appellant
has abused process of law. He had not been granted protection by the Karnataka
High Court which he mis-utilized. The two co-accused who had been granted
protection by the High Court are not co-operating in the investigation. It is,
therefore, submitted that the application of the appellant has been rightly
rejected by the impugned order. By way of clarification Mr. Subramaniam
submitted that the order passed by the Karnataka High Court has not been
violated. In fact, by order dated 20.10.2003, the learned Single Judge of the
Karnataka High Court has clarified that mere filing of charge sheet does not
mean that the petitioner has no right to file anticipatory bail application
before the concerned competent court and, therefore, the application was filed before
the Calcutta High Court.
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 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.
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
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.
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.
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.
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 h 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 of 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 is 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.
The
next question is whether a Court can pass an interim order not to arrest the
applicant, where an application under Section 438 of the Code is pending
disposal.
In the
instant case no application for protection in terms of Section 438 of the Code
is pending. What the appellant can do after surrendering to custody on 17th March, 2005, is to file an application in terms
of Section 437 or 439, as the case may be. Even otherwise, 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.
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 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.
We
make it clear that while upholding the rejection of the prayer in terms of
Section 438 of the Code, 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. Let the appellant, as submitted by learned counsel for him,
appear in the Court of learned SDJM, Alipore on 17th March, 2005. If an application for bail is moved, the learned SDJM
would do well to dispose it of on the day it is filed. In case the prayer for
bail is rejected and as stated by learned counsel for the appellant an
application for bail is filed before learned District and Sessions Judge, 24, Parganas
South, West Bengal on 17th March, 2005, the said Court would do well to dispose
of the application as early as practicable, preferably by 19th of March, 2005.
If it is filed at a later date, the learned District and Sessions Judge would
make an effort to dispose it of within three days of its filing. 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.
Appeal
is accordingly disposed of with no order as to costs.
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