D.K.
Ganesh Babu Vs. P.T. Manokaran & Ors [2007] Insc 193 (23 February 2007)
Dr. ARIJIT PASAYAT & R.V. RAVEENDRAN
(Arising our of SLP(Crl.) NO. 3374 of 2006) Dr. ARIJIT PASAYAT, J.
Leave granted.
Challenge in this appeal is to the order passed by a learned Single Judge of
the Madras High Court while dealing with an application filed in terms of
Section 438 of the Code of Criminal Procedure, 1973 (in short the 'Code') .This
Appeal has been filed by the complainant. The applicants before the High Court
who are respondents 1to 3 herein, filed the application as they were
apprehending arrest in crime No. 1358 of 2006 which was under investigation of
the Inspector of the concerned circle. It was alleged in the complaint that
because of the dowry demands, the victim committed suicide and the
accused-respondent Nos.1 to 3 apprehended arrest for the alleged offence under
Section 304 B of the Indian Penal Code, 1860 (in short the 'IPC') and Section 4
of the Dowry Prohibition Act, 1961(in short the 'Act').
The application was disposed of by the learned Single judge inter-alia with
the following observations and directions:
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each of them should execute a bond for a sum of Rs. 25.000/- (Rupees
Twenty Five Thousand only) together with two sureties each for the like sum to
the satisfaction of XVII Metropolitan Magistrate Saidapet, Chennai.
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The first petitioner shall appear
before the respondent police for a period of two weeks daily at 10.30.a.m. and
thereafter the first petitioner shall appear before the respondent police as and
when required.
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The petitioners 2 and 3 shall report before the respondent police for a
period of three days from l0.30. a.rn. to 12. 30. noon everyday and thereafter
they shall be available for interrogations as and when required.
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The petitioners 1 and 2, in consultation with the first accused, who is
the husband of the victim in this case, shall take all necessary steps to band
ever all the articles belonging to the victim viz. gold and diamond jewellery,
house held articles including the silver articles and the cash to the father of
the victim within a period of two weeks after our execution of this order.
The petitioners shall surrender before the court referred to above for
executing the bond and furnishing sureties within two weeks from the date of
receipt of copy of this order, falling which, this order shall stand
cancelled."
The only point urged in support of the appeal by the informant appellant is
that the parameters to be kept in view, while dealing with an application under
Section 438 of the Criminal Procedure Code, 1973 (in short the 'Code'), had not
been kept in view. It was submitted that actually the respondents have been
granted bail without surrender, since the terms for release have been
stipulated in the order itself.
Learned counsel for the respondent Nos. 1 to 3 on the other hand submitted
that the materials on record clearly justified passing of the order as done,
and there is nothing illegal in the order to warrant any interference. Further
the respondents have already surrendered and have been granted bail on the
terms stipulated by Learned Single Judge.
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 a
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 an 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:
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"A High Court or Court of Session may
direct -
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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;
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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.
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 an 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.
The aforesaid aspects have been highlighted in Adri Dharan Das v. State of West
Bengal (2005(4)SCC 303).
In view of what has been stated above some of the directions, given by
learned Single Judge, as quoted above, are not in line with what has been
stated in Adri Dharan Das's case (supra).
Accordingly we modify the directions. Since the respondents have already
surrendered and have been granted bail in terms of the High Court's directions,
they shall surrender before the concerned court and shall move for bail in
terms of Section 439 of the Code within four weeks from today. On that being
done the case shall be considered in its proper perspective uninfluenced by the
fact we have disapproved stipulation of conditions by the High Court. The
concerned court shall deal with the matter appropriately. It is brought to our
notice that the husband of the deceased has already been released on bail after
his surrender. The effect and/or relevance of that order shall be duly
considered by the concerned court while dealing with the application for bail
to be filed within stipulated time.
The appeal is allowed to the aforesaid extent.
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