SUPREME COURT OF INDIA
D.K.Ganesh Babu
Vs.
P.T.Manokaran & Ors.
Crl.A.No.249 of 2007
(Arijit Pasayat and R.V.Raveendran,JJ.,)
23.02.2007
JUDGMENT
Dr.Arijit Pasayat, J.
SLP(Crl.)No.3374 of 2006
1. Leave granted.
2. 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').
3. The application was disposed of by the learned Single judge inter-alia with
the following observations and directions:
“i. 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.
ii. 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.
iii. 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.
iv. 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."
4. 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.
5. 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.
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 Punjab1 . 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
Pradesh2 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:
"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)
7. 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".
8. In Salauddin Abdulsamad Shaikh v. State of Maharashtra3 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)
9. In K.L. Verma v. State and Anr4.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)
10. In Nirmal Jeet Kaur v. State of M.P5.
and Another and Sunita Devi v. State of Bihar and Anr6.
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.
11. 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 Ors7. ,
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.
12. 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.
13. 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.
14. The aforesaid aspects have been highlighted in Adri Dharan Das v. State
of West Bengal8.
15. 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.
16. The appeal is allowed to the aforesaid extent.
Judgment Referred.
1(1980) 2 SCC 0565
2AIR 1977 SC 0366
3AIR 1996 SC 1042
4(1996) 7 SCALE 0020
5(2004) 7 SCC 0558
6SLP (Crl.) No. 4601 of 2003
7AIR 1980 SC 0785
8(2005) 4 SCC 0303