Rekha Patel Vs. Pankaj Verma
and Ors  INSC 332 (3 March 2008)
Dr. Arijit Pasayat & J.M.
CRIMINAL APPEAL NO 428 OF 2008 (Arising out of SLP (Crl.) No.6495 of 2006)
DR. ARIJIT PASAYAT, J
1. Leave granted.
2. Challenge in this appeal is to the order passed by the Division Bench of
the Allahabad High Court passed on a petition under Article 226 of the
Constitution of India, 1950 (for short 'The Constitution').
3. The appellant was married to respondent No.1 on 12.11.2005.
Alleging that she was being harassed for non-fulfilment of the demand of
dowry, a complaint was filed at Thana, Jawan Police Station, District Aligarh.
On the basis of appellant's complaint Crime No.277 of 2006 was registered for
alleged commission of offences punishable under Sections 498A, 323, 504 and 506
of the Indian penal Code, 1860 (for short 'The IPC') and Sections 3/4 of the
Dowry Prohibition Act, 1961 (for short 'The Dowry Act'). Respondent Nos.1 to 6
filed a writ petition for quashing the F.I.R. and for stay of arrest pending
the disposal of the writ petition. The writ petition was filed on 1.11.2006. By
the impugned order dated 7.11.2006 the High Court declined to accept the prayer
for stay of arrest of the respondents but nevertheless passed the following
"Considering the facts and circumstances of the case, in the event the
petitioners put in their appearance or are produced before the courts below and
make application for their release on bail in case crime No. 277 of 2006 under
Sections 498-A, 323, 504 and 506 I.P.C., Police Station Jawan, District
Aligarh, the same shall be heard and disposed of expeditiously in accordance
with law and in case of petitioner Nos.1 to 5, if the learned Magistrate does
not find fit case to release them on bail, they shall be released on personal
bond of Rs.30,000/- each and they shall remain on the same personal bonds till
the final disposal of their bail application, if any, by the Court of Sessions
and that too within a week thereafter."
4. Learned counsel for the appellant submitted that virtually there has been
exercise of power under Section 438 of the Criminal Procedure Code, 1973 (in
short 'The Cr.P.C.'). It is pointed out that in the State of U.P., Section 438
Cr.P.C. has no application.
5. The learned counsel for respondent Nos.7 to 9 submitted that the
direction given by the High Court is clearly contrary to West Bengal (2005 (4)
6. There is no appearance on behalf of respondent Nos.1 to 6 in spite of
service of notice.
7. As rightly contended by the learned counsel for the appellant, presently
Section 438 Cr.P.C. has no application to the State of U.P. Even otherwise, as
noted in Adri Dharan Das's case (supra), after surrender of accused and
rejection of his bail application, the protection of the nature granted by the
High Court cannot be given. In this context paragraphs 7, 8, 9 10, 11, 12 and
13 of Adri Dharan Das's case (supra) are relevant. They read as follows:
"7. 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.
8. 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 -
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
that any condition
imposed by the Magistrate when releasing any person on bail be set aside or
(underlined for emphasis)
9. 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
10. 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
11. In K.L. Verma v. State and Anr. (1996 (7) SCALE 20) this Court observed
"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."
12. 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.
13. 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
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
8. It is, however, submitted by the learned counsel for the State that
pursuant to the direction given by the High Court, the respondents had moved
for bail and have been granted bail by the learned Sessions Judge concerned.
9. In view of the aforesaid situation, we decline to interfere in the
appeal; but have considered it necessary to indicate the correct parameters so
that the mistake committed by the High Court is not repeated.
10. The appeal is disposed of, subject to the aforesaid observations.
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