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TMI Blog2007 (10) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... f charges. It is also pointed out that the High Court has committed several errors on facts, for example it observed that the accused persons were not named in the first information report (in short the 'FIR') though they were specifically named in the FIR. 4. Learned Counsel for the respondents on the other hand submitted that without any material to show that the accused persons were involved in any conspiracy to do away with the deceased, false implications have been made with mala fide intent. The deceased was involved in several cases. It was submitted that the High Court had taken note of the position that the materials so far as the respondents are concerned for alleged conspiracy were contained in paragraphs 39, 41 and 42 of the case diary. It is submitted that learned Counsel for the informant before the High Court had also conceded that they contained the materials relating to the accused persons. 5. As rightly contended by learned Counsel for the appellant, granting blanket protection under Section 438 of the Code is not envisaged. There is also substance in the submission of learned Counsel for the appellant that the High Court has wrongly noted that the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 7. 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) 8. It is clear from a bare reading of the provisions that for making an application in terms of Section 439 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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) 11. In Nirmal Jeet Kaur v. State of M.P. and Anr. (2004)7SCC558 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 he 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of charge against the accused persons is warranted. We make it clear that we have expressed no opinion in that regard. 21. Before we part with the case, we feel it necessary to indicate that both the accused and the informant referred to several portions in the case diary. 22. Sections 207 and 208 of the Code deal with documents which are commonly known as police papers, which are to be supplied to the accused. The said sections read as follows: Section 207- Supply to the accused of copy of police report and other documents: In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following: (i) the police report; (ii) the first information report recorded under Section 154; (iii) the statements recorded under Sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under Sub-section (6) of Section 173; (iv) the confessions and statements, if any, recorded under Section 164; (v) any other document o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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