LexADRI DHARAN DAS versus STATE OF WEST BENGAL
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A ADRI DHARAN DAS v. ST ATE OF WEST BENGAL FEBRUARY 21, 2005 B [ARIJIT PA~AY AT AND S.H. KAPADIA, JJ.] Code of Criminal Procedure, 1973 : Sections 438-Protection under-Scope of--:Complaint under S.406, 467, C 468, 471 and 420 /PC-Prayer by accused for protection in terms of S.438- 0n facts, .held: the prayer was rightly rejected by High Court. Section 438-Application ·under-Held: Legality of proposed arrest cannot be gone into in such an application-Interim order restraining arrest, D if passed while dealing with an application under S.438, will amount to interference in the investigation, which cannot be done under S.438. Sections 438 antf. 439-.,.-Disiinction between---:Disc:_usse~ Complaint was lodged alleging commission of various offences more E particularly those. under Sections 406, 467, 468, 471 and 420 IPC against the appellant and five others. Prayer was made to the Judicial Magistrate fpr taking action in terms of Section 156(3) CrPC who directed the officer- in-charge of the concerned Police Station to investigate after taking the petition of complaint as FIR an<! to submit report before the Sub- Divisional Judicial Magistrate (SDJM). The accused filed application F under Section 438 CrPC before High Court alleging that they were victims of a conspiracy. High Court declined to accept the prayer made by appellant-accused to extend the protection available under Section 438 CrPC • Hence the present appeal G H Dis.posing of the appeal, the Court HELD : L The facility which Section 438 of the Code gives is generally referred to as 'anticipatory bail'. The distinction between an ordinary order of-bail and an order under Section 43.8 of the Code is that whereas the .former is granted after arrest, and therefore means release 188 A.O. DAS v. STATE OF WEST BENGAL 189 f~om custody of the Police, the latter is granted in antic"ipation of arrest A and is therefore effective at the very moment of arrest. I 193-F, H; 194-AI Gur Baksh Singh v. State of Punjab, 119801 2 SCC 565, relied on. Balachand Jain v. State of Madhya Pradesh, AIR (1977) SC 366, referred to. B 2. The power exercisable under Section 438 CrPC is somewhat extraordinary in character and it is only in exceptional cases where it appears that the person may be falsely implicated 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 C Section 438. The power being of important nature it is entrusted only to the higher ec:helons 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 D obtained an order from the Court of Session or High Court, he shall be released immediately on bail without being sent to jail. (194-D-FJ 3.1. Sections 438 and 439 operate in different fields. It was held in Nirmal Jeet Kaur's case and Sunita Devi's case that for making an application under Section 439 the fundamental requirement is that the E accused should be in custody. As observed in Salauddin 's case 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 ordefs under Sections 438 and 439 shall be rendered meaningless and redundant. 1194-F; 197-A-BI F Salauddin Abdulsamad Shaikh v. State of Maharashtra, AIR (1996) SC 1042 and Niranjan Singh and Anr. v. Prabhakar Rajarcim Kharote and Ors., AIR (1980) SC 785, relied on. K.l. Verma v. State and Anr., (1996) 7 SCALE 20; Nirmal Jeet Kaur G v. State of MP. and Anr., 120041 7 SCC 558 and Sunita Devi v. State of Bihar and Anr .. Criminal Appeal a·rising out of SLP (Crl.) No. 4601 of 2003 disposed of by Supreme Court on 6.12.2004, referred to . . 3.2. If the protective umbrella of Section 438 is extended beyond what H 190 SUPREME COURT REPORTS [2005] 2 S.C.R. A was laid down in Salauddin 's case the result would be clear by-passing 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
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