2005 (2) TMI 817 - SC - Indian Laws

Whether a Court can pass an interim order not to arrest the applicant, where an application under Section 438 of the Code is pending disposal?

Summary

Issues Involved:
1. Refusal to extend protection under Section 438 of the Code of Criminal Procedure, 1973.
2. Legality of interim orders restraining arrest while an application under Section 438 is pending.
3. The distinction between Sections 438 and 439 of the Code.
4. Conditions and limitations for granting anticipatory bail.

Detailed Analysis:

Issue 1: Refusal to Extend Protection under Section 438 of the Code of Criminal Procedure, 1973
The appellant challenged the Calcutta High Court's refusal to grant anticipatory bail under Section 438 of the Code. The complaint, lodged by Dayaram Das, alleged various offences under Sections 406, 467, 468, 471, and 420 of the IPC. The CJM directed an investigation based on the complaint. The appellant argued that the complaint was part of a conspiracy and that multiple cases were pending between the parties. Despite two co-accused being granted protection, the appellant's application was rejected, prompting the appeal. The appellant contended that the rejection was without proper appreciation of the factual background and sought permission to surrender and apply for bail without arrest until the application was decided.

Issue 2: Legality of Interim Orders Restraining Arrest
The Court examined whether it could pass an interim order not to arrest the appellant while an application under Section 438 was pending. It was concluded that such an interim order would interfere with the investigation process, which is beyond the scope of Section 438. The Court emphasized that arrest is part of the investigation process, intended to secure various objectives like questioning the accused, discovering material facts, and maintaining law and order. Restraining arrest would impede these objectives.

Issue 3: Distinction between Sections 438 and 439 of the Code
The Court clarified the differences between Sections 438 and 439. Section 438 deals with anticipatory bail, which is granted in anticipation of arrest, whereas Section 439 pertains to bail for persons already in custody. The Court highlighted that anticipatory bail is an extraordinary remedy, intended to prevent false implication and misuse of liberty, and is granted only in exceptional cases. The Court also noted that anticipatory bail orders should be of limited duration, requiring the accused to seek regular bail from the trial court once the investigation progresses.

Issue 4: Conditions and Limitations for Granting Anticipatory Bail
The Court reiterated that anticipatory bail is not a shield against all accusations and should not be granted based on vague apprehensions. The applicant must show reasonable grounds for believing that they may be arrested for a non-bailable offence. The Court emphasized that anticipatory bail should not be a blanket order covering any and all unlawful activities. The legal provisions require the applicant to demonstrate tangible grounds for their apprehension of arrest. The Court also noted that anticipatory bail should be granted for a limited duration, allowing the accused to apply for regular bail once the investigation provides more evidence.

Conclusion:
The Supreme Court upheld the High Court's rejection of anticipatory bail under Section 438, emphasizing that the appellant must surrender and apply for bail under Section 439 if arrested. The Court clarified that interim orders restraining arrest are not permissible under Section 438, as they would interfere with the investigation process. The Court also delineated the distinct purposes and conditions of Sections 438 and 439, affirming that anticipatory bail is an extraordinary remedy granted only under exceptional circumstances. The appeal was disposed of with directions for expedited consideration of the appellant's bail application upon surrender.