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CASE NO.:

Appeal (crl.) 326 of 2005

PETITIONER:

Adri Dharan Das

RESPONDENT:

State of West Bengal

DATE OF JUDGMENT: 21/02/2005

BENCH:

ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT:

J U D G M E N T

(Arising out of SLP (Crl.) No.250 of 2004)

ARIJIT PASAYAT, J.

Leave granted.

Refusal by a Division Bench of the Calcutta High Court to accept

prayer made by the appellant to extend the protection available under

Section 438 of the Code of Criminal Procedure, 1973 (in short the

'Code')is assailed by him. A brief reference to the factual position

would suffice.

Complaint was lodged by one Dayaram Das in the Court of Chief

Judicial Magistrate, Alipore, Calcutta (in short 'CJM') alleging

commission of various offences more particularly those covered under

Sections 406, 467, 468,471 and 420 of the Indian Penal Code, 1860 (in

short the 'IPC'). This complaint was filed against the appellant and

five others. It was claimed that the complainant Dayaram Das, who was

the President of Calcutta Branch/Temple situated at 3C, Albert Road,

Calcutta and manager of the premises at 22, Gurusaday Road, Calcutta

was appointed by the International Society for Krishna Consciousness

(in short the 'ISKCON') Bureau in accordance with Rules and

Regulations. Appellant was the previous President, who was suspended

by the Bureau on 2nd March, 2001 and was removed on 17th March, 2002.

The other persons named in the complaint (accused Nos. 2 to 6) were

stated to be his associates. Alleging that the accused persons had

committed various offences, prayer was made to Learned Judicial

Magistrate for taking action in terms of Section 156(3) of the Code.

The CJM on 13th May, 2002 directed the officer in charge of the

Ballygunj Police Station to investigate after taking the petition of

complaint as FIR and to submit report before Learned Sub-Divisional

Judicial Magistrate (in short the 'SDJM'). The case was registered as

Ballygunj P.S. Case no. 81 dated 3.6.2002 in Bollygunj Police Station.

According to the appellant they were victims of a conspiracy.

Large number of cases were pending between the parties which have been

filed. Having failed in their attempt to get any relief from the Civil

Courts, the complainant and his associates falsely instituted the

complaint. An application in terms of Section 438 of the Code was

filed before the Calcutta High Court which by the impugned order was

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rejected.

Mr. Gopal Subramanium, learned Senior Counsel appearing for the

appellant submitted that without properly appreciating the factual

background and the points involved in the application, the prayer

should not have been rejected summarily. Two of the accused persons

have been granted protection in terms of Section 438 of the Code by the

Division Bench of the Calcutta High Court. The appellant is always

willing to cooperate in the investigation. The efforts of the

respondent are to humiliate the appellant in public and cause damage to

his reputation. In the aforesaid background it is submitted that a

case for interference is made out. It was submitted that in case the

prayer for protection in terms of Section 438 of the Code is not

accepted the appellant may be permitted to surrender before the

concerned Court on 17/3/2005 and apply for bail. It was prayed that

directions may be given for early disposal of the applications by the

said Court and in case the prayer is not accepted by the lower Court,

by the District and Sessions Court who shall be moved, it was submitted

that the appellant would like to come to Calcutta on 10th of March, 2005

and is willing to co-operate in the investigation but he should not be

arrested till the disposal of the application for bail before learned

SDJM, Alipore.

In response, learned counsel appearing for the respondent submitted

that there is no provision in the Code for the direction not to arrest

and if such a direction is given it would be contrary to law. It was

also submitted that the appellant has not made out any case for

interference and his conduct is not above board. Considering the

serious nature of the allegations, it is not a fit case where any order

in terms of Section 438 of the Code can be passed. The appellant

has abused process of law. He had not been granted protection by the

Karnataka High Court which he mis-utilized. The two co-accused who had

been granted protection by the High Court are not co-operating in the

investigation. It is, therefore, submitted that the application of the

appellant has been rightly rejected by the impugned order. By way of

clarification Mr. Subramaniam submitted that the order passed by the

Karnataka High Court has not been violated. In fact, by order dated

20.10.2003, the learned Single Judge of the Karnataka High Court has

clarified that mere filing of charge sheet does not mean that the

petitioner has no right to file anticipatory bail application before

the concerned competent court and, therefore, the application was filed

before the Calcutta High Court.

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.

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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.

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)

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".

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(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.

After analyzing the crucial question is when a person is in

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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.

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.

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 h 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 of 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 is 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.

The next question is whether a Court can pass an interim order

not to arrest the applicant, where an application under Section 438 of

the Code is pending disposal.

In the instant case no application for protection in terms of

Section 438 of the Code is pending. What the appellant can do after

surrendering to custody on 17th March, 2005, is to file an application

in terms of Section 437 or 439, as the case may be. Even otherwise,

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

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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 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.

We make it clear that while upholding the rejection of the prayer

in terms of Section 438 of the Code, 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. Let the

appellant, as submitted by learned counsel for him, appear in the Court

of learned SDJM, Alipore on 17th March, 2005. If an application for

bail is moved, the learned SDJM would do well to dispose it of on the

day it is filed. In case the prayer for bail is rejected and as stated

by learned counsel for the appellant an application for bail is filed

before learned District and Sessions Judge, 24, Parganas South, West

Bengal on 17th March, 2005, the said Court would do well to dispose of

the application as early as practicable, preferably by 19th of March,

2005. If it is filed at a later date, the learned District and

Sessions Judge would make an effort to dispose it of within three days

of its filing. 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.

Appeal is accordingly disposed of with no order as to costs.