ADRI DHARAN DAS v. STATE OF WEST BENGAL

Citation: [2005] 2 S.C.R. 188

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, S.H. KAPADIA

Case summary

ADRI DHARAN DAS v. STATE OF WEST BENGAL.pdf

Judgment text

ADRI DHARAN DAS v. STATE OF WEST BENGAL FEBRUARY 21, 2005 [ARIJIT PA~AYAT AND S. H. KAPADIA, JJ. ] Code of Criminal Procedure, 1973 : Sections 438-Protection under-Scope of--:Complaint under S. 406, 467, 468, 471 and 420 /PC-Prayer by accusedfor protection in terms ofS. 438- 0n facts, . held: the prayer was rightly rejected by High Court. Section 438-Application ·under-Held: Legality of proposed arrest cannot be gone into in such an application-Interim order restraining arrest, if passed while dealing with an application under S. 438, will amount to interference in the investigation, which cannot be done under S. 438. Sections 438 antf. 439-. ,. -Disiinction between---:Disc:_usse~ Complaint was lodged alleging commission of various offences more particularly those. under Sections 406, 467, 468, 471 and 420 IPC against the appellant and five others.

Prayer was made to the Judicial Magistrate fpr taking action in terms ofSection 156(3) CrPC who directed the officerin-charge of the concerned Police Station to investigate after taking the petition of complaint as FIR an • ' • '. · ' -:· ail ordinary order of bail and an orderunder. Secti(? n438·ofthe Code is that whereas the former is granted after arrest, and therefore means release fro111 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 ofPunjab, [1980] 2 SCC565). Section 46(l)ofthe 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. The apex Court in Ba/achand 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 ofarrest, 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 oply 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 thatthe person may be falsely implicated or where there are reasonable grounds for holding that a person accused ofan offence is not likely to other\vise 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 tc 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. (I) 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) ofSection 437, may impose any condition whiCh it considers necessary for the purposes mentioned in that sub-section; A. O. DAS v. ST:A-TE OF WEST BENGAL (PASAYAT, J.

] 195 (b) that any condition imposed by the Magistrate when releasing any person on bail be set aside or modified~" (underlined for emphasis) It is dear from a bare reading of the provisions that for making an application in terms of Section 439 ofthe Code a person has to be in custody. B' Section 438 of the Code deals with "Direction for grant of bail to person apprehending arrest". In Salauddin Abdulsamad Shaikh v. State ofMaharashtra, 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. Th.

at 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 ofthat 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 chargesheet is submitted". (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 reguiar court to deal with the matter q,n 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 limtted duration as the regular court cannot be bypassed.

The limited duration mtlst be detennined having regard to the facts of the case and the need to give the accused sufficient ti~ 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 ofone way or the other the court may ~/low the accused to remain on anticipatory bail. To put it differently, anticipatory bail may be grantedfor a duration which may extend to the date on which the bail application is disposed of or even a few days thereafter to enable tn~ accused persons to move ihe higher court, if they so desire. " (Emphasis suppli_ed) In Nirmal Jeet Kaur v. State ofMP. and Anr. , (2004] 7 SCC 558 and Sunita Devi v. State ofBihar and Anr. , Criminal Appeal a. rising 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) wer. e 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 stalutory requirement of Section 439 of the Code cannot be said to have been rendered totally inoperative by the said observation. ·In view ofthe clear language ofSecticm 439 and in view ofthe deci~io_n 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. A. D. DAS v. STATE OF WEST BENGAL [PASAYAT; J. ] 197 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 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 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 ofthe 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 blanketto cover or protect-any and every 'kind ofallegedly unlawful activity. An o_rder under Section· 438 is a device. is secure the individual's liberty' it is neither. a passport to. the commission of crimes n~r a shield against any and all kinds of accusatio~s likely or unlikely. On the facts of the case, considered in the background of legal p9sition set out above, this does not prima facie appear'to be acase wher:e a~y order in tenns of Section 438 of the Code cari be passed. . .

The_ next question is whether a Court can pass an interim order not to arresfthe applicant, where an application under Section 438 of the Code is pending disposal. In the instant case rio application for protection in tenns 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 tenns 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 ·. ':relea5ed. on bail subject to ·such conditions ·as the Court "Ilia)' de~m flt to:.. <"' . •. · .. , . . . . .. . ~ . . . • , . . . ;. ·-~ lyr:. . impose. An applicati~n 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 riature ofthe directfon 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 irresist. ible inference is that while dealing with an application under Se~tion 438 9f 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 G. the cri~e and the connection of other persons, if any,jn the crime. There may be circumstances in which the accused may provide "informatfon 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 ch~e. to prevent his • ,· • • . ' . . '• ,, . , .. t•,.. ,·. ;:. ;. •••. lo ·~- • ·~ •. -; .. · ' . : .. . , .. . • . dis~appeararice· to maintain law and order 'in the :locality.. For these·. or•o_th'er .. ~·. A. D. DAS v. STATE OF WEST BENGAL [PASAYAT, J. ] 199 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 o~ 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 ofa crime or with the arrest ofaccused in a cognizable offence. An interim order.

restraining arrest, ifpassed while dealing with an application und~r Section 438 ofthe Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code. We m~ki;. it clear that while upholding the rejection of the prayer in tenns 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 otr 17th March, 2005,. the ·said Court would do well to dispose ofthe application as early as practicable, preferably by 19th ofMarch, 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 appeat:ing 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. B. RB. Appeal disposed of.