Naresh
Kumar Yadav Vs. Ravindra Kumar and Ors [2007] Insc 1094 (23 October 2007)
Dr.
Arijit Pasayat & Lokeshwar Singh Panta
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.
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