2004 (12) TMI 727 - SC - Indian Laws

Anticipatory bail - Seeking bail application in terms of Section 439 of the CrPC - Commission of offences punishable under Sections 341/323 read with Section 34 IPC - HELD THAT - In view of the clear language of Section 439 and in view of the decision of this Court in Niranjan Singh and Anr. v. Prabhakar Rajaram Kharote 1980 (3) TMI 258 - SUPREME COURT , there cannot be any doubt that unless a person is in custody, an application for bail u/s 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. Since the expression custody though used in various provisions of the Code, including Section 439, has not been defined in the Code, it has to be understood in setting in which it is used and the provisions contained in Section 437 which relates to jurisdiction of the Magistrate to release an accused on bail under certain circumstances which can be characterized as in custody in a generic sense. The expression custody as used in Section 439, must be taken to be a compendious expression referring to the events on the happening of which Magistrate can entertain a bail petition of an accused. Section 437 envisages, inter alia, that the Magistrate may release an accused on bail, if such accused appears before the Magistrate. There cannot be any doubt that such appearance before the Magistrate must be physical appearance and the consequential surrender to the jurisdiction of the Court of the Magistrate. For making an application u/s 439 the fundamental requirement is that the accused should be in custody. As observed in Salauddin's case 1995 (12) TMI 416 - SUPREME COURT the protection in terms of Section 433 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. Respondent No. 2 would surrender to custody as required in law so that his application u/s 439 of the Code can be taken for disposal. The appeal is allowed to the aforesaid extent.

Summary

Issues Involved:
1. Protection u/s 438 of the Code of Criminal Procedure, 1973.
2. Distinction between Sections 438 and 439 of the Code.
3. Requirement of custody for bail application u/s 439.
4. Unauthorized access to supervision notes.

Summary:

Protection u/s 438 of the Code of Criminal Procedure, 1973:
The appellant challenged the protection granted to respondent No. 2 u/s 438 of the Code. The informant lodged a complaint alleging that respondent No. 2 and others entered her house, demanded money, assaulted her brother, and attempted to commit rape on her. FIR was registered under Sections 384/376/511 read with Section 34 IPC. Respondent No. 2 filed for anticipatory bail, which was granted by the High Court.

Distinction between Sections 438 and 439 of the Code:
It was argued that the anticipatory bail granted was contrary to the scheme of the Code. Section 438 deals with anticipatory bail, while Section 439 pertains to bail for persons in custody. The Court emphasized that anticipatory bail should be of limited duration and the accused must apply for regular bail before the appropriate court.

Requirement of custody for bail application u/s 439:
The Court clarified that for an application u/s 439, the person must be in custody. The term "custody" implies being under the control of the court or police. The Court noted that anticipatory bail orders should not bypass the regular court's role in granting bail after arrest. The statutory requirement of being in custody for a bail application u/s 439 cannot be ignored.

Unauthorized access to supervision notes:
The Court observed that both parties referred to supervision notes, which are not part of the documents to be supplied to the accused u/s 207 and 208 of the Code. The Court directed that supervision notes should not be made available to any person and appropriate action should be taken against officials enabling unauthorized access to such notes.

Conclusion:
The Supreme Court set aside the High Court's order granting unconditional protection. Respondent No. 2 was directed to surrender to custody and apply for regular bail within a month. The Court also highlighted the need to maintain the confidentiality of supervision notes and directed state authorities to ensure compliance.