2007 (10) TMI 701 - SC - Indian Laws

Anticipatory bail - Seeking grant of protection u/s 438 - Whether courts had the inherent power to pass an order of bail in anticipation of arrest? - HELD THAT - The provisions cannot be invoked after arrest of the 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 blanket to cover or protect any and every kind of allegedly unlawful activity. An order under Section 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 of accusations likely or unlikely. On the facts of the case considered in the background of legal position set out above this does not prima facie appear to be a case where any order in terms of Section 438 of the Code can be passed. Thus we direct that within a period of four weeks from today the respondents shall surrender before the concerned Court and shall seek regular bail. We make it clear that 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. If an application for bail is moved the concerned Court would do well to dispose it of on 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 of non-availability of records if the accused-respondents intimate the date on which they purpose to surrender three days in advance. Further it is baffling to note that the 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 not 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. The appeal is disposed of accordingly.

Summary

Issues Involved:
1. Grant of anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973.
2. Parameters for granting anticipatory bail.
3. Distinction between Sections 438 and 439 of the Code.
4. Misapplication of facts by the High Court.
5. Procedural aspects related to the supply of documents to the accused under Sections 207 and 208 of the Code.

Issue-wise Detailed Analysis:

1. Grant of anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973:
The appellant challenged the High Court's order granting anticipatory bail to the respondents. The Supreme Court reiterated that anticipatory bail is a provision for personal liberty, allowing a person to apply for bail in anticipation of arrest. It is intended to provide conditional immunity from arrest, effective at the moment of arrest.

2. Parameters for granting anticipatory bail:
The Court emphasized that anticipatory bail should only be granted in exceptional cases where there is a reasonable belief that the person may be falsely implicated or is unlikely to misuse their liberty. The Court criticized the High Court for granting blanket protection under Section 438 without adhering to established parameters and noted that such protection should be of limited duration, allowing the regular court to deal with the matter based on the evidence collected during the investigation.

3. Distinction between Sections 438 and 439 of the Code:
The judgment clarified the distinct fields of operation for Sections 438 and 439. Section 438 deals with anticipatory bail, which is granted in anticipation of arrest, while Section 439 pertains to bail for persons already in custody. The Court highlighted that anticipatory bail orders should not bypass the regular court's jurisdiction and must be of limited duration, ensuring that the accused moves the regular court for bail once the investigation progresses.

4. Misapplication of facts by the High Court:
The Supreme Court found that the High Court erred in its factual observations, particularly noting that the accused were named in the FIR contrary to the High Court's assertion. The Court stressed the importance of accurate factual assessment when considering anticipatory bail applications.

5. Procedural aspects related to the supply of documents to the accused under Sections 207 and 208 of the Code:
The Court addressed the procedural requirements for supplying documents to the accused, as stipulated in Sections 207 and 208. These provisions ensure that the accused is aware of the materials against them, enabling a proper defense. The Court noted instances where unauthorized access to the case diary was evident and emphasized that such documents should only be accessed as per statutory provisions.

Conclusion:
The Supreme Court directed the respondents to surrender before the concerned court within four weeks and seek regular bail under Section 439. The Court clarified that it did not express any opinion on the merits of the case and instructed the lower court to consider the bail application in accordance with the law. The judgment underscored the importance of adhering to procedural norms and accurate factual assessments in bail matters.