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TMI Blog2005 (2) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... Branch/Temple situated at 3C, Albert Road, Calcutta and manager of the premises at 22, Gurusaday Road, Calcutta was appointed by the International Society for Krishna Consciousness (in short the 'ISKCON') Bureau in accordance with Rules and Regulations. Appellant was the previous President, who was suspended by the Bureau on 2nd March, 2001 and was removed on 17th March, 2002. The other persons named in the complaint (accused Nos. 2 to 6) were stated to be his associates. Alleging that the accused persons had committed various offences, prayer was made to Learned Judicial Magistrate for taking action in terms of Section 156(3) of the Code. The CJM on 13th May, 2002 directed the officer in charge of the Ballygunj Police Station to investigate after taking the petition of complaint as FIR and to submit report before Learned Sub-Divisional Judicial Magistrate (in short the 'SDJM'). The case was registered as Ballygunj P.S. Case no. 81 dated 3.6.2002 in Bollygunj Police Station. According to the appellant they were victims of a conspiracy. Large number of cases were pending between the parties which have been filed. Having failed in their attempt to get any relief fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that the order passed by the Karnataka High Court has not been violated. In fact, by order dated 20.10.2003, the learned Single Judge of the Karnataka High Court has clarified that mere filing of charge sheet does not mean that the petitioner has no right to file anticipatory bail application before the concerned competent court and, therefore, the application was filed before the Calcutta High Court. The facility which Section 438 of the Code gives is generally referred to as 'anticipatory bail'. This expression which was used by the Law Commission in its 41st Report is neither used in the section nor in its marginal note. But the expression 'anticipatory bail' is a convenient mode of indication that it is possible to apply for bail in anticipation of arrest. Any order of bail can be effective only from the time of arrest of the accused. Wharton's Law Lexicon explains 'bail' as 'to set at liberty a person arrested or imprisoned, on security being taken for his appearance.' Thus bail is basically release from restraint, more particularly the custody of Police. The distinction between an ordinary order of bail and an order under Section 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e any condition which it considers necessary for the purposes mentioned in that sub-section; (b) that any condition imposed by the Magistrate when releasing any person on bail be set aside or modified. (underlined for emphasis) It is clear from a bare reading of the provisions that for making an application in terms of Section 439 of the Code a person has to be in custody. Section 438 of the Code deals with Direction for grant of bail to person apprehending arrest . 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter to enable the accused persons to move the Higher Court, if they so desire . It was held that the requirement of Section 439 of the Code is not wiped out by the above observations. Section 439 comes into operation only when a person is in custody . In K.L. Verma's case (supra) reference was made to Salauddin's case (supra). In the said case there was no such indication 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. 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. After analyzing the crucial question is when a person i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. The next question is 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. In the instant c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code. We make it clear that while upholding the rejection of the prayer in terms of Section 438 of the Code, 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. Let the appellant, as submitted by learned counsel for him, appear in the Court of learned SDJM, Alipore on 17th March, 2005. If an application for bail is moved, the learned SDJM would do well to dispose it of on the day it is filed. In case the prayer for bail is rejected and as stated by learned counsel for the appellant an application for bail is filed before learned District and Sessions Judge, 24, Parganas South, West Bengal on 17th March, 2005, the said Court would do well to dispose of the application as early as practicable, preferably by 19th of March, 2005. If it is filed at a later date, the learned District and Sessions Judge would make an effort to dispose it of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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