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TMI Blog2008 (12) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... he was discharged of offence punishable under Section 413 of the Indian Penal Code, 1860 (in short the 'IPC') by the trial Court and therefore he was facing trial only for the offence triable by the Court of Magistrate, i.e. under Sections 457, 380 and 411 IPC. It was the stand of the appellant that the evidence of the prosecution witnesses was not sufficient to secure his conviction in respect of any of the charges. It was pointed out that evidence of seven witnesses have been recorded and none of them has implicated him in the crime. There is no recovery from him and other co-accused persons similarly situated namely, Madam Mohan Agarwal and Manoj Sharma had been enlarged on bail. Out of 10 cases registered against him, he has been granted bail in six cases. He is in jail for more than 2½ years and in any case he is entitled to bail in view of the provisions contained in Section 437(6) of the Code of Criminal Procedure, 1973 (in short the 'Code'). The State opposed the bail application on the ground that in an identical case the application of the applicant was rejected by the Jaipur Bench and the matter was carried to this Court and no interference was made. Furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 7. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nr. 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. 10. After analyzing the crucial question that 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. 11. If the protective umbrella of Section 438 is extended beyond what was laid down in Salauddin's case (sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely. 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. 13. "Bail" remains an undefined term in the Cr.P.C. Nowhere else the term has been statutorily defined. Conceptually, it continues to be understood as a right for assertion of freedom against the State imposing restraints since the U.N. Declaration of Human Rights of 1948, to which India is a signatory, the concept of bail has found a place within the scope of human rights. The dictionary meaning of the expression 'bail' denotes a security for appearance of a prisoner for his release. Etymologically, the word is derived from an old French verb 'bailer' which means to 'give' or 'to deliver', although another view is that its derivation is from the Latin term baiulare, meaning 'to bear a burden'. Bail is a conditional liberty. Strouds' Judicial Dictionary (Fourth Edition 1971) spells out certain other details. It states : "When a man is taken or arrested for felony, suspicion of felony, indicated of felony, or any such case, so that he is restrained of his liberty - And bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 436 provides for granting bail in bailable cases and Section 437 in non-bailable cases. A person accused of a bailable offence is entitled to be released on bail pending his trial. In case of such offences, a police officer has no discretion to refuse bail if the accused is prepared to furnish surety. The Magistrate gets jurisdiction to grant bail during the course of investigation when the accused is produced before him. In bailable offence there is no question of discretion for granting bail. The only choice for the Court is as between taking a simple recognizance of the principal offender or demanding security with surety. Persons contemplated by this Section cannot be taken in custody unless they are unable or unwilling to offer bail or to execute personal bonds. The Court has no discretion, when granting bail under this section, even to impose any condition except the demanding of security with sureties. 18. "Bailable offence" is defined in Clause (b) of Section 2 of the Cr.P.C. to mean an offence which is shown as bailable in the First Schedule of the Cr.P.C, or which is made bailable by any other law for the time being in force; and "non-bailable offence" means a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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