2004 (9) TMI 639 - SC - Indian Laws

Whether Respondent no.2 would surrender to custody as required in law so that his application under Section 439 of the Code can be taken for disposal?

Summary

Issues Involved:
1. Validity of protection granted under Section 438 of the Code of Criminal Procedure, 1973.
2. Distinction between Sections 438 and 439 of the Code of Criminal Procedure, 1973.
3. Requirement of custody for bail application under Section 439 of the Code of Criminal Procedure, 1973.

Detailed Analysis:

1. Validity of Protection Granted Under Section 438 of the Code of Criminal Procedure, 1973:
The appellant challenged the protection granted to respondent no.2 under Section 438 of the Code of Criminal Procedure, 1973. The High Court had disposed of the anticipatory bail application with directions for the respondent to cooperate with the investigation, not tamper with evidence, and to approach the appropriate court for regular bail within four weeks. Despite this, respondent no.2's subsequent applications for regular bail were rejected by the Judicial Magistrate and the Sessions Court. The High Court later extended the ad-interim anticipatory bail, which was contested by the appellant as being inconsistent with the earlier order and beyond the permissible duration for anticipatory bail.

2. Distinction Between Sections 438 and 439 of the Code of Criminal Procedure, 1973:
Sections 438 and 439 of the Code operate in different fields. Section 438 deals with anticipatory bail, which is granted in anticipation of arrest, whereas Section 439 pertains to bail for individuals already in custody. The distinction is crucial as anticipatory bail under Section 438 is intended to protect individuals from arrest, while Section 439 requires the person to be in custody to apply for bail. The court emphasized that anticipatory bail should be of limited duration, allowing the accused to seek regular bail from the appropriate court once sufficient evidence is available post-investigation.

3. Requirement of Custody for Bail Application Under Section 439 of the Code of Criminal Procedure, 1973:
The court highlighted that for an application under Section 439 to be maintainable, the accused must be in custody. This requirement was underscored by referencing previous judgments, including *Niranjan Singh v. Prabhakar Rajaram Kharote* and *Salauddin Abdulsamad Shaikh v. State of Maharashtra*. The term "custody" was interpreted to mean physical presence under the control of the court or police authority. The court clarified that the statutory requirement of custody cannot be bypassed, and any extension of anticipatory bail beyond the initial limited duration would render Section 439 meaningless. The court concluded that the High Court's extension of anticipatory bail while the application under Section 439 was pending was unsustainable.

Conclusion:
The Supreme Court allowed the appeal to the extent that respondent no.2 must surrender to custody to make the application under Section 439 valid. The High Court was directed to dispose of the bail application in accordance with the law immediately after respondent no.2 is in custody. The court refrained from expressing any opinion on the merits of the case.