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TMI Blog2004 (12) TMI 727X X X X Extracts X X X X X X X X Extracts X X X X ..... r elder brother Suresh Vishwakarma. When Suresh Vishwakarma refused to give the same showing his inability to arrange such a huge amount, Anuj Kumar assaulted him by the butt of revolver on his head and below his eye. When the informant came for his rescue, she too was assaulted by fists and legs and the said Anuj Kumar demonstrating the revolver said that since her brother has not given the money, therefore outraged the modesty of his sister in the presence of all. Saying this, the headman Anuj Kumar pulled the informant-Sunita Devi, put her on the ground and lifting her petticoat and saree lied down on her and attempted to commit rape on her. Further, when seeing the entire incident the informant's sister Usha Devi came to rescue her, Anil Kumar hit her on her left thumb and legs with lathi. Thereafter, Anil and Sunil assaulted the sons of her brother Suresh Vishwakarma, namely Amarjit and Sujit and her mother with lathi on their faces. Then the informant's family started crying and hearing this the villagers namely Chhotey Lal Pandit, Puran Singh and others came and have seen the incident. However, because of the fear of revolver they could not apprehend accused persons. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Bal Chand Jain v. State of M.P. [1977] 2 SCR 52 , it was observed that the expression "anticipatory bail" is really a misnomer because what Section 438 contemplates is not an anticipatory bail, but merely an order directing the release of an accused on bail on the event of his arrest. It is, therefore, manifest that there is no question of bail unless a person is arrested in connection with a non-bailable offence by the police. The distinction between an order in terms of Section 438 and that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 11. The reference to this Court's observation as quoted above was to Salauddin's case (supra). 12. The grey area according to us is the following part of the judgment in K.L. Verma's case (supra) "or even a few days thereafter to enable the accused persons to move the Higher Court, if they so desire". 13. Obviously, 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate can entertain a bail petition of an accused. Section 437 envisages, inter alia, that the Magistrate may release an accused on bail, if such accused appears before the Magistrate. There cannot be any doubt that such appearance before the Magistrate must be physical appearance and the consequential surrender to the jurisdiction of the Court of the Magistrate. 17. In Black's Law Dictionary by Henry Campbell Black, M.A. (Sixth Edn.), the expression "custody" has been explained in the following manner: ".....The term is very elastic and may mean actual imprisonment or physical detention....within statute requiring that petitioner be 'in custody' to be entitled to federal habeas corpus relief does not necessarily mean actual physical detention in jail or prison but rather is synonymous with restraint of liberty....Accordingly, persons on probation or parole or released on bail or on own recognizance have been held to be 'in custody' for purposes of habeas corpus proceeding." 18. It is to be noted that in K.L. Verma's case (supra) the Court only indicated that time may be extended to "move" the higher court. In Black's Law Dictionary the said exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judicial conscience. 21. 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 433 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. 22. 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. 23. These aspects were recently highlighted in Nirmal Jeetkaur v. The State of Madhya Pradesh and Anr. (2004) 7 SCC 558 . Therefore the order of the High Court granting unconditional protection is clearly untenable and is set aside. However the petitioner is granted a mont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 triable exclusively by the Court of Session, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:- (i) the statements recorded under Section 200 or Section 202, or all persons examined by the Magistrate; (ii) the statements and confessions, if any, recorded under Section 161 or Section 164; (iii) any documents produced before the Magistrate on which the prosecution proposes to rely: Provided that if the Magistrate is satisfied that any such document 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." 28. The supervision notes can in no count be called. They are not a p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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