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TMI Blog2007 (2) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his dis-appearance to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process of investigation. In view of what has been stated in some of the directions, given by learned Single Judge, as quoted, are not in line with what has been stated in Adri Dharan Das's case [ 2005 (2) TMI 817 - SUPREME COURT] . Accordingly we modify the directions. Since the respondents have already surrendered and have been granted bail in terms of the High Court's directions, they shall surrender before the concerned court and shall move for bail in terms of Section 439 of the Code within four weeks from today. On that being done the case shall be considered in its proper perspective uninfluenced by the fact we have disapproved stipula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . iv. The petitioners 1 and 2, in consultation with the first accused, who is the husband of the victim in this case, shall take all necessary steps to band ever all the articles belonging to the victim viz. gold and diamond jewellery, house held articles including the silver articles and the cash to the father of the victim within a period of two weeks after our execution of this order. The petitioners shall surrender before the court referred to above for executing the bond and furnishing sureties within two weeks from the date of receipt of copy of this order, falling which, this order shall stand cancelled. 4. The only point urged in support of the appeal by the informant-appellant is that the parameters to be kept in view, while dealing with an application under Section 438 of the Criminal Procedure Code, 1973 (in short the 'Code'), had not been kept in view. It was submitted that actually the respondents have been granted bail without surrender, since the terms for release have been stipulated in the order itself. 5. Learned Counsel for the respondent Nos. 1 to 3 on the other hand submitted that the materials on record clearly justified passing of the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty then power is to be exercised under Section 438. The power being of an important nature it is entrusted only to the higher echelons of judicial forums, i.e. the Court of Session or the High Court. It is the power exercisable in case of an anticipated accusation of non-bailable offence. The object which is sought to be achieved by Section 438 of the Code is that the moment a person is arrested, if he has already obtained an order from the Court of Session or High Court, he shall be released immediately on bail without being sent to jail. 7. Sections 438 and 439 operate in different fields. Section 439 of the Code reads as follows: 439. (1) A High Court or Court of Session may direct - (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in Sub-section (3) of Section 437, may impose 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limited duration must be determined having regard to the facts of the case and the need to give the accused sufficient time to move the regular court for bail and to give the regular court sufficient time to determine the bail application. In other words, till the bail application is disposed of one way or the other the court may allow the accused to remain on anticipatory bail. To put it differently, anticipatory bail may be granted for 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) 10. In Nirmal Jeet Kaur v. State of M.P. and Anr. (2004)7SCC558 and Sunita Devi v. State of Bihar and Anr. Criminal Appeal arising out of AIR2005SC498 disposed of on 6.12.2004, certain grey areas in the case of K.L. Verma's case (supra) were noticed. The same related to the observation or even a few days thereafter 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... protect witnesses and persons connected with the victim of the crime, to prevent his dis-appearance to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well-defined and the jurisdictional scope of interference by the Court in the process of investigation is limited. The Court ordinarily will not interfere with the investigation of a crime or with the arrest of accused in a cognizable offence. An interim order restraining arrest, if passed while dealing 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. The aforesaid aspects have been highlighted in Adri Dharan Das v. State of West Bengal 2005CriLJ1706 . 14. In view of what has been stated above some of the directions, given by learned Single Judge, as quoted above, are not in line with what has been stated in Adri Dharan Das's case (supra). Accordingly we modify the directions. Since th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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