NARESH KUMAR YADAV v. RAVINDRA KUMAR AND ORS

Citation: [2007] 11 S.C.R. 615

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, LOKESHWAR SINGH PANTA

Case summary

NARESH KUMAR YADAV v. RAVINDRA KUMAR AND ORS.pdf

Judgment text

/ y- NARESH Kl JMAR YADAV v. RAVINDRA KUMAR AND ORS. OCTOBER 23, 2007 [DR ARIJIT PASAYAT AND LOKESHWAR SINGH f' PANTA,JJ. ] . 7 Code ofCriminal Procedure, 1973: s. 438-Protection under-Held: Is for limited duration during which regular Court has to be movedfor bail-Applicant has to show that he has 'reason to believe' that he may be arrested in non-bailable offence-Beliefhas to befounded on reasonable grounds only ifthere is something tangible to show that his apprehension that he may be arrested is genuine-Direction that applicant be released on bail ·~ "whenever arrestedfor whichever offence whatsoever" should not be issued as it would serve as blanket to protect any and every kind of allegedly unlawful activity-Onfacts, High Court wrongly noted that accusedpersons were not named in FIR andgrantedprotection under s. 438-Hence, order of High Court not sustainable-Bail- Anticipatory bail. ss. 438 and 439-Distinction between-Discussed. ss.

207 and 208-0bject of-Held: Is to enable accused to defend --! 'r himselfproperly. Case diary-Informant and accused, at hearing of bail applications referring to portions ofcase diary in support oftheir stand-Held: Legally they could not have access to these official records-Hence, courts to take serious note ofthe same. Words andphrases: """" 'reason to believe '-Connotation of-Jn the context ofs. 438 of Code ofCriminal Procedure, 1973. The present appeal is filed by the informant challenging the order ofHigh Court allowing the prayer of respondent nos. 1, 2 and 3 for seeking protection in terms ofs. 438 Cr. P. C. on the ground that i while allowing so, the High Court had not kept in view the parameter for granting such protection; that the High Court had preempted the framing ofcharges and also had wrongly noted that accused persons A were not named in the FIR. ~ Disposing ofthe appeal, the Court ;15 HELD: 1. 1.

The High Court has wrongly noted that the accused ·persons were not named in the FIR; in fact they were specifically 'named. [Para 5] (620-E] ~1~\· - . - • 'Ji\ "\' 1. 2. Thefacilitywhich s. 438 Cr. P. C. gives is generally referred 1 \t,? ~s;•anticipatory _bail'. This expression which was used by the Law C~mmission in its 41st Report is neither used in the section nor in ~. h\ • •\, , ' . ,its marginal note. But the expression 'anticipatory bail' is a l\j \;! '\\. , ' . . . convenient mode ofindication that it is possible to apply for bail in IHII\ 11~\\ °'anti~ipation ofarrest. Any order ofbail can be effective only from 1~)\ ·-l· ~ ")',\\ 'Q. WharfOIJ;~S Law Lexicon, referred to. 2. 1. The power exercisable under s. 438 is somewhat . .

extraordinary in character and it is only in exceptional cases where \it ~ppea'rs th'afthe person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an ·H offence is not likely to otherwise misuse his liberty then power is to r ... ,. __ be exercised under s. 438. The power being ofimportant nature it is entrusted only to the higher echelons of judicial forums, i. e. th~ Court of Session or the High Court. It is the power exerdsable in case ofan anticipated accusation ofnon-bailable offence. The object which is sought to be achieved by s. 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 r ;r· immediately on bail without being sent to jail. [Para 6] [621-D, E, FJ BalachandJain v. State ofMadhya Pradesh, AIR (1977) SC 366, referred to. 2. 2. The protection in terms ofs.

438 is for a limited duration during which the regular Court has to be moved for bail. Obviously, such bail is bail in terms ofs. 439 mandating the applicant to be in custody. Otherwise, the distinction between orders under ss. 438 an~ y 439 shall be rendered meaningless and redundant. [Para 13) [624-D) Salauddin Abdulsamad Shaikh v. State ofMaharashtra, AIR (1996) SC 1042, relied on. K. L. Verma v. State and Anr. (1996) 7 SCALE 20; Nirmal Jeet Kaurv. State ofMP. andAnr. , [2004) 7 SCC 558; Sunita Deviv. State o/BiharandAnr. , [Criminal Appeal arising out ofSLP (Crl. ) No. 4601 of 2003 disposed of on 6. 12. 2004) and Niranjan Singh and Anr. v~ -J. )' Prabhakar Rajaram Kharote and Ors. , AIR (1980) SC 785, referred to. 3. S. 438 is a procedural provision which is concerned with the personal liberty ofan individual who is entitled to plead innocence, since he is not on the date ofapplication for exercise ofpower undeJ s. 438 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 oHhe expression 'reason to believe' that he may be arrested, in a non-bailable offence, show~ that the applicant may be arrested must be founded on reasonablJ grounds. Mere "fear" is not 'belier, 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 ofwhich he may be arrested. Grounds on which the beliefofthe applicant is based that he may be arrested in nonba~lab)e offen_ce mus~ b. e capable ofbeing,examin. ed. [Para 15] [624-F, G; 625-A] 4. Ifan 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 mad. e out for granting the reliefsought. The provision,s cannot be invoked after arrest ofthe accused. A blanket order should not be generally passed.

It flows from the very language ofthe 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 ofwhich it can be said that the applicant's apprehension that he may be arrested is genuine.. Normally a direction should not be issued 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 coveror protect any and every kind ofallegedly unlawful activity. An order under s. 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 ofaccusations like~y or unlikely.

On the facts ofthe case, considered in the background oflegal p~sition set out above, this does not primafacie appear to be a case where any order in terms of s. 438 can be passed. [Para 15] [625-B, C, D, E] Adri Dharan Das v. State of West Bengal, [2005] 4 SCC 303, relied on. 5. 1. In view of the principles oflaw and the factual scenario involved, respondent is directed to surrender within a period offour weeks before the concerned Court and seek regular bail. Thus no opinion is expressed on the merits of the case. Both the accused and the informant referred to several portions in the case diary. The documents in terms of ss. 207 and 208 are supplied to make the j. , accused aware of the materials which are sought to be utilized against him. The object is to enable the accused to defend hims~lf properly. The idea behir. d the supply ofcopies is to put him on notice ofwhat he has to meet at the trial. [Paras 17, 18, 21 and 23] (625-F, G; 626-E; 628-B, CJ Noor Khan v.

State ofRajasthan, AIR (1964) SC 286 and Shakita t- Abdul Gafar Khan (Smt. ) v. Vasant Raghunath Dhoble andAnr. , [2003] ;:r 7 sec 749, relied on. 5. 2. Itis baft1ing to note that the accused and informant referr(jd to particular portions ofcase diary. At the stage the bail applications 1 were heard by the High Court, legally they could not have been in position to have access to the same. The papers which are to ~e supplied to the accused have been statutorily prescribed. The Courts should take serious note when the accused or the informant refers to the case diary to buttress a stand. [Para 24] (628-F, G] ·y- CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1462 of 2007. From the Judgment and final Order dated 10. 7. 2006 of the High Court ofJudicature at Patna in Cr. Misc. No. 34337 of2005 with Cr. Misc. Nos. 35682 & 34139 of 2005. ' Sunil Kumar, Rajiv Shankar Dvivedi and Ajay Choudhary for the Appellant. ~ 'r P. S.

Mishra and Ranjit Kumar, Amit Pawan, Gopal Singh and Manish Kumar for the Respondents. The Judgment ofthe Court was delivered by DR. ARIJIT PASAYAT, J. 1. Leave granted. 2. Challenge in this appeal is by the informant to the order passed -,.. , by a learned Single Judge of the Patna High Court disposing of three petitions filed by respondent nos. 1, 2 and 3. By the said petitions, the prayer for protection in terms of Section 438 ofthe Code of Criminal Procedure, 1973 (in short the Code') was accepted. j 3. Learned counsel for the appellant submitted that while allowing the protection in tenns of Section 438 ofthe Code the High Court has not kept in view the parameters indicated by this Court for granting such protection. Even otherwise, the High Court has pre-empted the framing of 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 infonnation 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 ma/afide intent. The deceased was involved in several cases. It was submitted that the High Court had taken note ofthe position that the materials so far as the respondents are concerned for alleged conspiracy were contained in paragraphs~39, 41and42 ofthe 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 oflearned 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 ofthe Code gives is generally "'( ~referred to as 'anticipatory bail'. This expression which was used by the Law Commission in its 41 st Report is neither used in the section nor in its marginal note. But the expression 'anticipatory bail' is a convenient mode ofindication that it is possible to apply for bail in anticipatio~ ~f-~est. ~~order ofba~l can be effe~tive only from the ~iI]. le,~ffilf~s~ qftp~-~9cqsed. W? art9n'~ La~Lexic~n expl~ns 'b~il' >'~ :9eli~ye'.. filat pe. μta)_' ]Js,~~~t. e;d;i? a 1,1on-~,~i,l3'-91~? f\~~WYr~Y. ~e of tll. ~;e~pre~~i_qn_,;re~s9n, to. b~lj~ye' . sh. o. 'r'~ t~~t,,h~ a~P,\i~~nf_ !

n~Y:pe tH . ilIT~li~yd-J! lustJP. ~. J<,mJld. ~9 on rea~ona~le :W~~n4s. J0<fff ':f~. ~~'-'}~~pot , f ! ')-·... , 'belief for which reason it is not enough for the applicant to show that he has some sort ofvague 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 of the applicant is based that he may be arrested in non-bailable offence must be capable ofbeing 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 reliefsought. The provisions cannot be invoked after arrest ,'T ofthe accused. A blanket order should not be generally passed. It flows from the very language ofthe 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 ofwhich 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 ofallegedly unlawful activity. An order under Section 438 is a device to secure the individual's liberty, it is neither a passport to the commission ofcrimes nor a shield against any and all kinds ofaccusations likely or unlikely. On the facts ofthe case, considered in the background oflegal position set out above, this does not prima facie appear to be a case where any order in terms ofSection 438 ofthe Code can be passed. 16. These aspects have been highlighted inAdri Dharan Das v.

-{ ~ State of West Bengal, [2005] 4 SCC 303. 17. In view ofthe principles oflaw as set out above and the factual scenario involved, we direct that within aperiod offour weeks from today the respondents shall surrender before the concerned Court and shall seek regular bail. 18. We make it clear that we are not expressing any opinion on the )... -" merits ofthe case. When the bail application is moved in terms ofSection 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 \ A dispose it ofon 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 ofnon-availability of records ifthe accused-respondents intimate the date on which they purpose to surrender three days in advance. 19.

It is to be noted that apprehension ofthe appellant that framing A ofcharge pre-empted is based on the following observations ofthe High ', Court: "Ifupon the completion of the investigation charge sheet is submitted against the petitioners on material other than noticed presently, the petitioners shall have their remedies in accordance with law. " 20. So far as filing of the charge sheet and framing of charge concerned, needless to say that charge sheet shall be submitted on the basis ofmaterials collected during investigation and while considering the charge sheet filed the concerned Court shall take note of the relevant factors and decide as to whether on the materials on record framing 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 ofthe 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 ofcopy ofpolice report and other docum"ents: 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) ofSection 161 ofali 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, ifany, recorded under _. ,.

T Section 164; (v) any other document or relevant extract thereofforwarded to the Magistrate with the police report under sub-section (5) of Section 173: Provided that the Magistrate may, after perusing any such part ofa 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 ·y 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 offurnishing 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 ofSession- 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 ofSession, the Magistrate shall without delay furnish to the accused, free ofcost, a copy of each ofthe 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 offurnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court. " 23.

The documents in terms ofSections 207 and 208 are supplied 'h to make the accused aware ofthe materials which are sought to be utilized against him. The object is to enable the accused to defend himselfproperly. The idea behind the supply of copies is to put him on notice ofwhat he has to meet at the trial. The effect of non-supply of copies has been considered by this Court in Noor Khan v. State of Rajasthan, AIR (1964) SC 286 and Shakila Abdul Gafar Khan (Smt. ) v. Vasant Raghunath Dhoble and Anr. , [2003] 7 SCC 749. It was held that nonsupply is not necessarilyprejudicial to the accused. The Court has to give a definite finding about the prejudice or otherwise. Even the supervision notes cannot be utilized by the prosecution as a piece of material or evidence against the accused. Ifany reference is made before any court to the supervision notes, as has noted above they are not to be taken note of by the concerned court.

As many instances have come to light when the parties, as in the present case, make reference to the supervision notes, the inevitable conclusion is that they have unauthorized access to the official records. 24. Further, it is baffling to note that t_he accused and informant referred to particular positions of case diary. At the stage the bail . , ~ applications were heard by the High Court, legally they could riot have been in a position to have access to the same. The papers which are to be supplied to the accused have been statutorily prescribed. The Courts should take serious note when the accused or the informant refers to the case diary to buttress a stand. ... ) 25. The appeal is disposed ofaccordingly. / D. G. Appeal disposed of.