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TMI Blog2008 (11) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... ant of protection under Section 438 of the Code. 3. Background facts, highlighted by the appellants, are as follows: Citibank and Citigroup Wealth Advisors (in short 'CWA') are two separate legal entities. Citibank carries on banking activities and is incorporated under the Banking Regulations Act, 1956 and is guided by the directions and guidelines of the Reserve Bank of India; whereas CWA is a wealth advisory body incorporated under the Companies Act, 1956 and is regulated by the directions and guidelines as set out by SEBI and the Stock Exchanges. Appellants' (who are employees of Citi Bank) prayer for anticipatory bail are based on the premises that the allegations in the complaint are purely of civil nature since arbitration proceedings have been initiated at the behest of both the complainant and CWA much prior to the institution of the criminal case. The prayer was opposed by the State and the complainant. The High Court noted that the allegation in the FIR was to the following effect: A perusal of the FIR shows that an amount of ₹ 1.10 crores has been fraudulently withdrawn from the saving account of the complainant and shares worth ₹ 1.60 cro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. The distinction between an ordinary order of bail and an order under Section 438 of the Code is that whereas the former is granted after arrest, and therefore means release from custody of the Police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. (See: Gur Baksh Singh v. State of Punjab 1980CriLJ1125 Section 46(1) of the Code, which deals with how arrests are to be made, provides that in making an arrest the Police officer or other person making the same "shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action". The order under Section 438 of the Code is intended to confer conditional immunity from the touch as envisaged by Section 46(1) of the Code or any confinement. The apex Court in Balachand Jain v. State of Madhya Pradesh AIR 1977 SC 366 has described the expression 'anticipatory bail' as misnomer. It is well-known that bail is ordinary manifestation of arrest, that the Court thinks first to make an order is that in the event of arrest a person shall be released on bail. Manifestly there is no question of release on bail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il, 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 made progress or the charge-sheet is submitted. (Emphasis supplied) 10. In K.L. Verma v. State and Anr. (1996)10 SCC 255 this Court observed as follows: This Court further observed that 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. It was, therefore, pointed out that it was 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in the aforesaid decision. 13. After analyzing the crucial question is 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 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. 14. If the protective umbrella of Section 438 is extended beyond what was laid down in Salauddin's case (supra) the result would be clear bypassing of what is mandated in Section 439 regarding custody. In other words, till the applicant avails remedies upto higher Courts, the requirements of Section 439 become dead letter. No part of a statute can be rendered redundant in that manner. 15. Section 438 is a procedural provision which is concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 above position was highlighted in Adri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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