TMI Blog2007 (10) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... order under Section 438 is a device to 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. Thus, we direct that within a period of four weeks from today the respondents shall surrender before the concerned Court and shall seek regular bail. We make it clear that 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. If an application for bail is moved, the concerned Court would do well to dispose it of on the day it is filed. 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 if the accused-respondents intimate the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 accused persons were not named in the FIR, in fact they were specifically named. 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 arres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 . 9. In Salauddin Abdulsamad Shaikh v. State of Maharashtra 1996 Cri LJ1368 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, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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. 12. 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. 1980 Cri LJ426, 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. 13. After analyzing the crucial question is 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 Suni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to 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. 16. These aspects have been highlighted in Adri Dharan Das v. State of West Bengal 2005 Cri LJ1706 ). 17. In view of the principles of law as set out above and the factual scenario involved, we direct that within a period of four weeks from today the respondents shall surrender before the concerned Court and sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 or relevant extract thereof forwarded to the Magistrate with the police report under Sub-section (5) of Section 173: Provided that the Magistrate may, after perusing any such part of a statement as is referred to in Clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused: Provided further that if the Magistrate is satisfied that any document referred to in Clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court. Section 208- Supply of copies of statements and documents to accused in other cases triable by Court of Session- Where, in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process under Section 204 that the offence is tri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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