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TMI Blog2008 (12) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... with him, for the Appellant. S/Shri Aruneshwar Gupta, AAG, Altaf Ahmed, Sr. Advocate, Naveen Kumar Singh, Sashwat Gupta and Bharat Bhushan, Advocates, with them, for the Respondent. [Order per : Arijit Pasayat J.]. Challenge in this appeal is to the order passed by a learned Single Judge of the Rajasthan High Court at Jodhpur, rejecting the application for bail filed by the appellant. An earlier application for bail filed by the appellant was also rejected by the High Court by order dated 15-12-2003. Allegation against the appellant was that he is involved in several nefarious activities of smuggling of antiques particularly the idols to foreign countries for heavy sums of money. 2. Stand of appellant before the High Court was that he was discharged of offence punishable under Section 413 of the Indian Penal Code, 1860 (in short the IPC ) by the trial Court and therefore he was facing trial only for the offence triable by the Court of Magistrate, i.e. under Sections 457, 380 and 411 IPC. It was the stand of the appellant that the evidence of the prosecution witnesses was not sufficient to secure his conviction in respect of any of the charges. It was pointed out t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th Direction for grant of bail to person apprehending arrest . 6. In Salauddin Abdulsamad Shaikh v. State of Maharashtra (AIR 1996 SC 1042) it was observed as follows : Anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the regular court, which is to try the offender, is sought to be bypassed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry directed the petitioner to move the regular court for bail. That is the correct procedure to follow because it must be realised that when the Court of Sessions or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature of evidence against the alleged offender. It is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as given in K.L. Verma s case (supra), that a few days can be granted to the accused to move the higher Court if they so desire. The statutory requirement of Section 439 of the Code cannot be said to have been rendered totally inoperative by the said observation. 9. 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 and Ors. (AIR 1980 SC 785), there cannot be any doubt that unless a person is in custody, an application for bail under Section 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. 10. After analyzing the crucial question that when a person is in custody, within the meaning of Section 439 of the Code, it was held in Nirmal Jeet Kaur s case (supra) and Sunita Devi s case (supra) that for making an application under Section 439 the fundamental requirement is that the accused should be in custody. As observed in Salauddin s case (supra) the protection in terms of Section 438 is for a limited duration during which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ichever 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 is 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. 13. Bail remains an undefined term in the Cr.P.C. Nowhere else the term has been statutorily defined. Conceptually, it continues to be understood as a right for assertion of freedom against the State imposing restraints since the U.N. Declaration of Human Rights of 1948, to which India is a signatory, the concept of bail has found a place within the scope of human rights. The dictionary meaning of the expression bail denotes a security for appearance of a prisoner for his release. Etymologically, the word is derived from an old French verb bailer which means to give or to deliver , although another view is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in custody with the object of punishing him on the assumption of his guilt. 17. Chapter XXXIII consists of Sections 436 to 450. Sections 436 and 437 provide for the granting of bail to accused persons before trial and conviction. For the purposes of bail, offences are classified into two categories, that is, (i) bailable, (ii) non-bailable. Section 436 provides for granting bail in bailable cases and Section 437 in non-bailable cases. A person accused of a bailable offence is entitled to be released on bail pending his trial. In case of such offences, a police officer has no discretion to refuse bail if the accused is prepared to furnish surety. The Magistrate gets jurisdiction to grant bail during the course of investigation when the accused is produced before him. In bailable offence there is no question of discretion for granting bail. The only choice for the Court is as between taking a simple recognizance of the principal offender or demanding security with surety. Persons contemplated by this Section cannot be taken in custody unless they are unable or unwilling to offer bail or to execute personal bonds. The Court has no discretion, when granting bail under this section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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