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Report No 203

6.3.13 In Directorate of Enforcement v. Deepak Mahajan and another (1994) 3SCC 440, the Supreme Court made the following observations:

"The word 'arrest' is derived from the French word 'Arreter' meaning "to stop or stay" and signifies a restraint of the person. Lexicologically, the meaning of the word 'arrest' is given in various dictionaries depending upon the circumstances in which the said expression is used. One of us, (S. Ratnavel Pandia,, J. as he then was being the Judge of the High Court of Madras) in Roshan Beevi and others v. Joint Secretary, Government of Tamil Nadu and others 1984 (Cri. L.J. 134: (1984) 15 ELT 289: 1983 MLW (Cri) 289 (Mad)) had an occasion to go into the gamut of the meaning of the word 'arrest' with reference to various textbooks and dictionaries, the New Encyclopaedia Britannica, Halsbury's Laws, A History of Law by L.B. Curzon, Black's Law Dictionary and Words and Phrases. On the basis of the meaning given in those text-books and lexicons, it has been held that:

"[T]he word 'arrest' when used in its ordinary and natural sense, means the apprehension or restraint or the deprivation of one's personal liberty. The question whether the person is under arrest or not, depends not on the legality of the arrest, but on whether he has been deprived of his personal liberty to go where he pleases. When used in the legal sense in the procedure connected with criminal offences, an arrest consists in the taking into custody of another person under authority empowered by law, for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offence.

The essential elements to constitute an arrest in the above sense are that there must be intent to arrest under the authority, accompanied by a seizure or detention of the person in the manner known to law, which is so understood by the person arrested."

There are various sections in Chapter V of the Code titled "Arrest of persons" of which Sections 41, 42, 43 and 44 empower different authorities and even private persons to arrest a person in given situation.

Thus the Code gives power of arrest not only to a police officer and a Magistrate but also under certain circumstances or given situations to private persons. Further, when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that accused person into custody and deal with him according to law. Needless to emphasize that the arrest of a person is a condition precedent for taking him into judicial custody thereof. To put it differently, the taking of the person into judicial custody is followed after the arrest of the person concerned by the Magistrate on appearance or surrender.

It will be appropriate, at this stage, to note that in every arrest, there is custody but not vice versa and that both the words 'custody' and 'arrest' are not synonymous terms. Though 'custody' may amount to an arrest in certain circumstances but not under all circums-tances. If these two terms are interpreted as synonymous, it is nothing but an ultra legalist interpretation which if under all circumstances accepted and adopted, would lead to a startling anomaly resulting in serious consequences, vide Roshan Beevi."

6.3.14 In State of Assam v. Mobarak Ali and others, 1982 Cri. LJ 1816, a Division Bench held that when an accused voluntarily surrendered before the Court and the Court granted him bail, then grant of bail would be under Section 437 and within the jurisdiction of the Magistrate. Such an action could not be said to be one under Section 438. While interpreting Section 437 of the Code of Criminal Procedure, 1973, Lahari J, speaking for the Bench, made the following observations:

"The Section assigns the authority competent to grant bail, namely, a Court other than the High Court and the Court of Session. It specifies the nature of the offence, i.e. non-bailable offences. The section also prescribes the circumstances when bail may be granted, namely, (1) when the accused has been arrested or detained without warrant by an officer-in-charge of a police station. In such circumstances production or appearance in Court is non-essential; (2) when the accused appears, or, (3) he is brought before a Court, other than the High Court or Court of Session, he may be enlarged on bail by "the Court".

Therefore, the conditions precedent to entertain application for bail is whether the person is an accused or suspected of the commission of any offence. If the learned Magistrate finds that he is accused of an offence or is suspected of commission of a non-bailable offence, the second condition comes into play, namely, whether he is under arrest or detention without warrant by an office-incharge of the police station. If he is arrested or detained, the detention must be by an officer-in-charge of the police station and without any warrant.

Apart from this an accused may be brought before the Court by any police officer or authority competent to arrest an accused or any person legally competent to arrest him. Therefore, in the first case the physical production of the accused before the Court is not at all necessary whereas in the case of bringing the accused before the Court requires production of his "corpus". This production of the accused before a Court does not depend on the own volition of the accused. It is an act of the third party.

In between, there is another class or type of persons who may be enlarged on bail under Section 437, that is, person who is accused of or suspected of a commission of a non-bailable offence appears voluntarily before the Court, what he should do on "appearance" is to make an application before the Court asking for bail. The grant of bail or refusal thereof is absolutely within the discretion of the Court. His appearance in Court capacitates the Court to grant bail with condition or without condition. No sooner does he appear before the Court, the accused or the suspect surrenders to the custody of the Court.

The act of appearance or surrender to the custody enables the accused to ask for bail. Such accused may be enlarged on bail by the order of the Court or the Court may straightway send the accused to jail if it does not grant bail. As such, whenever an accused appears voluntarily before the Court and surrenders to the Court he remains throughout in the custody of the Court until he is enlarged on bail. The question of granting bail to such an accused cannot arise unless he is not in custody of the Court.

When an accused "appears" and asks for bail, he must surrender to the Court and remain in custody of the Court. No such accused or suspect can ask for bail under Section 437, if he appears but does not submit to the custody of the Court. The meaning of the term "custody" is "physical control" or at least physical presence of the accused in Court coupled with submission to the jurisdiction and order of the Court, as explained by the Supreme Court in Niranjan Singh v. Prabhakar, AIR 1980 SC 785 : (1980 Cri. L.J. 426). Their Lordships have clearly stated:

"he can be stated to be in judicial custody when he surrenders before the Court and submits to its direction". Therefore, the term "appears" in Section 437 means and includes voluntary appearance before the Court without intervention of any agency and the act of surrender before the Court coupled with submission to its directions. These are implicit in Section 437 of "the Code".

As Such, we hold that when an accused appears and remains in the physical control of the Court or he is physically present and submits to the jurisdiction and orders of the Court, the Magistrate is empowered to grant bail to such an accused or suspect, if he is so entitled to. In the instant case, the accused appeared and surrendered to the jurisdiction of the Court, prayed for enlargement on bail. The Magistrate was competent to grant bail. However, the learned Judge is of the view that exercise of such power collides with the exclusive power of the High Court or the Court of Session conferred on them under Section 438 of "the Code".

The ambit and scope of Section 438 are quite distinct and separate. A direction for grant of bail to a person apprehending arrest can be made in favour of a person who apprehends arrest. No application under Section 438 can be made by a person detained or arrested by the police. The applicant need not appear in Court nor should be brought in Court. He cannot be granted bail by the Court forthwith. He can only get a direction from the Court that in the event of his arrest he may be enlarged on bail by the police. Therefore, the distinctive features are that in Section 438 -

(i) the applicant need not be an accused person,

(ii) he need not be brought before a court nor his personal appearance in Court is a condition precedent; he may apply without personally appearing before the Court;

(iii) the applicant he submit to the custody of the Court;

(iv) the application must be for anticipatory bail in the event of his arrest. Therefore, on arrest no application under Section 438 is maintainable;

(v) the Court cannot direct that he should be released on bail forthwith.

It can only make a direction that in the event of his arrest he should be released on bail. The authority to grant bail is the officer-in-charge of police station, if the applicant is wanted to be arrested without warrant, on such accusation. This extraordinary power to make direction for grant of bail cannot be exercised by the Magistrate directly or indirectly. It can only be exercised by the High Court or the Court of Session.

In the instance case, the accused did not ask for grant of bail apprehending arrest. The accused persons surrendered before the Court and prayed for bail. Therefore, Section 438 had no application in the present case. Under these circumstances, we hold that the learned Chief Judicial Magistrate did not exercise the powers and functions under Section 438 of "the Code". The exercise of the powers and functions were limited within the scope of Section 437 of "the Code".

Accordingly, we answer the question that the learned Chief Judicial Magistrate acted under Section 437 of the Code and did not exercise any power and function under Section 438. The order is revisable by the learned Session Judge."

6.3.15 As stated earlier, the Code of Criminal Procedure did not contain any specific provisions corresponding to the present Section 438. Under the old Code, there was a sharp difference of opinion amongst the various High Courts on the question as to whether courts had the inherent power to pass an order of bail in anticipation of arrest, the preponderance of view being that it did not have such power. It will be expedient to refer to the reasons underlying this view. For this purpose, the following observations made by Madhya Pradesh High Court in the case of State of Madhya Pradesh v. Narayan Prasad Jaiswal, AIR 1963 Madhya Pradesh 276 will be of relevance:

"The dictionary meaning of the word 'bail' is to set free or liberate a person on security being given for his appearance. In Wharton's Law Lexicon (14th Edn.) the word "bail" has been defined thus -

"to set at liberty a person arrested or imprisoned, on security being taken for his appearance on a day and at a place certain, which security is called bail, because the party arrested or imprisoned is delivered into the hands of those who bind themselves or become bail for his due appearance when required, in order that he may be safely protected from prison, to which they have, if they fear his escape, etc. the legal power to deliver him."

In Tomlin's Law Dictionary, it has been stated that the word 'bail' is used in our Common Law for the freeing or setting at liberty of one arrested or imprisoned upon any action, either civil or criminal, on surety taken for his appearance at a day and place certain. The reason why it is called 'bail', is because by this means the party restrained is delivered into the hands of those that binds themselves for his forthcoming, in order to a safe keeping or protection from prison". The word has been similarly defined in Earl Jowitt's 'Dictionary of English Law' (1959 Edn.). It has also been similarly defined in Stroud's Judicial Dictionary and other legal dictionaries. 'Bail' thus means release of a person from legal custody.

This meaning of the word has been adhered to in the Code. A reference to Sections 57, 59, 62, 63, 64, 169, 170, 496 and 497 giving to the police the power to release on bail and Sections 76, 86, 91, 186, 217, 426, 427, 432, 438, 496 and 497 dealing with the power of the Court to grant bail and to the forms prescribed for bailable warrants and for bail-bonds which are to be executed when bail is given makes it very clear that where a person is granted bail he is released from restraint. If, therefore, the grant of bail to a person presupposes that he is in the custody of the Police or of the Court, or, if not already in such custody is required to surrender to such custody, then it is unreal to talk of any person, who is under no such restraint, being granted bail."

6.3.16 The contention that anticipatory bail was permissible because of use of the word 'appears' in Sections 496 and 497, did not find favour with Court. The Court was of the view that mere voluntary appearance, without anything more could not give rise to the Court the power of releasing the person on bail. The reason is that a person who is free and is not required to surrender to any custody under any order of arrest issued against him is under no custody from which he could be released.

6.3.17 Single Judge of the High Court of Kerala too observed in Varkey Paily Madthikudiyil Pulinthanam v. State of Kerala, AIR 1967, Kerala 189 that bail means release of a person from legal custody and the grant of bail to a person pre-supposes that he is in the custody of the police or of the Court.

6.3.18 In B. Narayanappa and others v. State of Karnataka, 1982 Cri.L.J.1334, it was held that when the accused appeared and submitted to the jurisdiction of the court, he was under judicial custody and the Magistrate could not have rejected his bail application under Section 436 of the Code of Criminal Procedure, 1973 on the ground that the applicants were neither arrested by the police nor they had been summoned by the Court nor they appeared in response to any process of the Court. The Court observed:

"There is nothing in the Section either to exclude voluntary appearance or to suggest that the appearance of the accused must be in obedience to a process issued by the Court. No doubt the other expressions used in the section as "is brought before Court" have reference to prior arrest and bringing of such person before Court by the police either in pursuance of a process issued by the Court or otherwise on account of the inability of such person arrested to give bail immediately on being arrested and detained by an officer in charge of the police station. The word 'appearance' as used in the section to me, it appears, is wide enough to include the voluntary appearance."

6.3.19 Referring to the decision of the Supreme Court in Niranjan Singh and another v. Prabhakar Rajaram Kharote, AIR 1980 SC 785, the High Court of Karnataka further observed:

"In the present case also the accused having appeared before the Court had submitted to the jurisdiction of the Court and asked for bail. As enunciated in the above decision, if the surrender and the physical presence of the accused with submission to the jurisdiction and orders of the Court is judicial custody, then the accused-petitioner herein having appeared before the Court and asked of bail, they were under restraint and they had submitted to the jurisdiction of the Court.

The Magistrate was not right in saying that he is not in a position to understand the meaning of the word 'appears' within the meaning of the expression "custody' as used in Section 439 as discussed in the said decision with the meaning of Section 436 Cr.P.C. When the mere physical presence before the Court with a request to grant bail amounts to custody, it is more than appearance."

6.3.20 Section 88 of Code of Criminal Procedure, 1973 provides for power to take bond for appearance. Accordingly, when any person for whose appearance or arrest the officer presiding in any court is empowered to issue a summons or warrant, is present in such court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such court, or other court to which the case may be referred for trial.

The presence of the person must be on his own volition as a free agent and not under compulsion of any court's order. This section was held to be inapplicable when the accused was present along with his counsel in response to the court's summons in the case of K. Pandarinathan v. V. Raju and another, 1998 Cri. L.J. 1128.

6.3.21 Section 88 corresponds to Section 91 of the old Code. While dealing with Section 91 of the Code of Criminal Procedure, 1898, the Supreme Court made the following observations in the case of Madhu Limaye and another v. Ved Murti and others (AIR 1971 SC 2481), viz. "In fact Section 91 applies to a person who is present in court and is free because it speaks of his being bound over to appear on another day before the court. That shows that the person must be a free agent whether to appear or not.

If the person is already under arrest and in custody, as were the petitioners, their appearance depended not on their own volition but on the volition of the person who had their custody..... It is not necessary to take a bond from a person who is already in detention and is not released. The danger arises when the man is free and not when he is in custody. It is to prevent his acting that the bond is taken or he is kept in custody till he gives the bond. Section 344 deals with ordinary adjournment of a case and allows a person to be admitted to bail or the court to remand him if he is in custody".

6.3.22 It will be expedient to recapitulate the essential ingredients of the new sub-section (1B) even at the cost of repetition. Firstly, the presence of the applicant seeking anticipatory shall be obligatory in terms of sub-section (1B); Secondly, such presence will be so obligatory at the time of final hearing of his application and passing of final order by the court; Thirdly, such presence is rendered obligatory on an application made to the court by the Public Prosecutor praying for such presence in the interest of justice; And lastly, such presence will be insisted upon as obligatory if the court considers, on the application made to it by the Public Prosecutor, that such presence is necessary in the interest of justice.

In the aforesaid circumstances, there is obvious restraint on the freedom and liberty of the applicant and obligatory presence envisaged by the sub-section subject the applicant to the dictate of the court. Such obligatory presence is apparently not compatible with the applicant's right to court's direction for anticipatory bail as he is already placed under restraint and he is most likely to be transferred from court's custody to the police/judicial custody in the event of rejection of his anticipatory bail application. Such an eventuality would not have been in the legislative contemplation while providing for anticipatory bail. We are therefore inclined to take the view that sub-section (1B) renders the right to anticipatory bail nugatory and infructuous.

6.3.23 From the aforesaid, it may be seen that in case a person happens to be present in the Court on his own volition, the Court may take action under Section 88 of the Code to bind him for appearance on a future date. However, if a person surrender himself in the Court and subject himself to Court directions, Section 88 would be inapplicable in such a case and the proper course would be to either remand him to judicial custody or admit him to bail. Where a person seeks anticipatory bail, the Court may not direct his personal appearance. It will, however, be open to the Court to either reject his application or grant him anticipatory bail.

Where a person appears before the Court in compliance with any Court's order and surrenders himself to the Court's directions or control, he may be granted regular bail since he is already under restraint. The provisions relating to the anticipatory bail may not be attracted in such a case. In view of the aforesaid, the insertion of new subsection (1B) in Section 438 is apparently not in consonance with the nature and scheme of anticipatory bail. The obligatory nature of the presence as envisaged in this new sub-section renders the application for anticipatory bail infructuous as the applicant has already been placed under restraint and is in the custody of Court.

6.3.24 We are conscious of the fact that this aspect of the matter seems to have unwittingly escaped this Commission's attention at the time of submitting 154th Report. We are also aware of the fact that the similar provision has been inserted in the Code in its application to the State of Maharashtra by State amendment made in 1993. It has not been brought to our notice if the obligatory presence of the applicant in compliance with the Court's order has received judicial consideration in any case.

We have noted the case of State of Maharshtra and another v. Mohd. Sajid Husain Mohd. S. Husain etc. 207(12) SCALE 63 under Sectio Cr.P.C. as amended by the State of Maharshtra by Act No. 24 of 1973. But the case was dealt with reference to the four factors mentioned in sub-section (1) of Section 438 that were relevant for considering the application for grant of anticipatory bail. The question of obligatory presence of the applicant did not crop up for Court's consideration.

Nevertheless, we are of the view that obligatory presence of the applicant seeking anticipatory bail in compliance with Court's order to that effect will be antithesis to his right to anticipatory bail. We are, therefore, of the considered view that sub-section (1B) should be omitted from this section.



Section 438 of the Code of Criminal Procedure, 1973 as amended by the Code of Criminal Procedure (Amendment) Act, 2005 - Anticipatory Bail Back




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