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TMI Blog2004 (9) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1961 (in short the 'Dowry Act') against respondent no.2 and some of his relatives. On 29.4.2003 respondent no.2 filed an application for protection in terms of Section 438 of the Code before the High Court of Madhya Pradesh, Jabalpur Bench, which was registered as Misc. Crl. Case No. 2890/2003. By order dated 15.5.2003 the High Court disposed of the application to the following directions: (i) That the petitioner shall make himself available to the police for investigation in connection with the above offences as and when required in this behalf; (ii) That the petitioner shall not, directly or indirectly, tamper with the prosecution evidence. (iii) The petitioner may approach the appropriate court within the period of four weeks for regular bail. It appears that respondent no.2 applied for regular bail before the Judicial Magistrate, First Class, Jabalpur, which was rejected. On 5.6.2003 prayer for bail was made before the Sessions Court, Jabalpur, but that also was rejected. On 7.6.2003 respondent no.2 filed an application in terms of Section 439 of the Code before the High Court. On 12.6.2003 the matter was listed before the vacation Judge. The matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 Bal Chand Jain v. State of M.P. (1976) 4 SCC 572) it was observed that the expression anticipatory bail is really a misnomer because what Section 438 contemplates is not an anticipator bail, but merely an order directing the release of an accused on bail on the event of his arrest. It is, therefore, manifest that there is no question of bail unless a person is arrested in connection with a non-bailable offence by the police. The distinction between an order in terms of Section 438 and that in terms of Section 439 is that the latter is passed after arrest whereas former is passed in anticipation of arrest and become effective at the very moment of arrest. (See Gur Baksh Singh v. State of Punjab (1980) 2 SCC 565). In Salauddin Abdulsamad Shaikh v. State of Maharashtra (AIR 1996 SC 1042) it was observed as follows: Anticipatory bail is granted in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a duration which may extend to the date on which the bail application is disposed of or even a few days thereafter to enable the accused persons to move the higher court, if they so desire. (Emphasis supplied) The reference to this Court's observation as quoted above was to Salauddin's case (supra). The grey area according to us is the following part of the judgment in K.L. Verma's case (supra) or even a few days thereafter to enable the accused persons to move the Higher Court, if they so desire . Obviously, 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 Sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Black's Law Dictionary by Henry Campbell Black, M.A. (Sixth Edn.), the expression custody has been explained in the following manner: .....The term is very elastic and may mean actual imprisonment or physical detention....within statute requiring that petitioner be 'in custody' to be entitled to federal habeas corpus relief does not necessarily mean actual physical detention in jail or prison but rather is synonymous with restraint of liberty....Accordingly, persons on probation or parole or released on bail or on own recognizance have been held to be 'in custody' for purposes of habeas corpus proceeding. It is to be noted that in K.L. Verma's case (supra) the Court only indicated that time may be extended to move the higher court. In Black's Law Dictionary the said expression has been explained as follows: Move: to make an application to a Court for a rule or order, or to take action in any matter. The term comprehends all things necessary to be done by a litigant to obtain an order of the Court directing the relief sought. In Salauddin's case (supra) also this Court observed that the regular Court has to be moved for bail. Obv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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