D.K. GANESH BABU versus P.T. MANOKARAN AND ORS.

Citation: [2007] 3 S.C.R. 1 · Decided: 23-02-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Case Partly allowed
Open in Lexace · Ask the AI about this case
Judgment (excerpt)

D.K. GANESH BABU 
A 
11. 
P.T. MANOKARAN AND ORS. 
FEBRUARY 23, 2007 
[Dr.ARIJITPASAYAT ANDR.V.RAVEENDRAN,JJ.] 
B 
Code of Criminal Procedure, 1973-s. 438-Anticipatory bail-Scope 
r 
and nature of-Stipulation of terms for release in the order granting bail-
Propriety of-Held: Power under section 438 is of extraordinary character- c 
it has to be exercised only in exceptional cases where there is apprehension 
of false implication or where it appears that accused would not misuse his 
liberty-The condition precedent for the operation of the directions issued 
under section 438, is arrest of the accused-While entertaining such 
application, restraining arrest, will amount to interference in the investigation, 
which is not permissible-In the facts of the case, stipulation of conditions D 
by High Court is disapproved-Direction to the accused to move bail 
application in terms of s. 439 as he has already surrendered 
Bail-Ordinary bail and Anticipatory Bail-distinction between. 
Words and Phrases-'Bail'-Meaning of 
E 
Respondent Nos. I to 3 filed an application under section 438 Cr.P.C. 
for anticipatory bail, as they were apprehending arrest in a criminal case 
under investigation. The application was disposed of by High Court stipulating 
the terms of release in the order. 
F 
) 
In appeal to this Court, the complainants contended that as the terms 
for the release had been stipulated in the order itself, actually the respondents 
were granted bail without surrender. 
Partly allowing the appeal, the Court. 
G 
HELD: 1. Any order of bail can be effective only from the time of arrest 
• 
of the accused. Bail is basically release from restraint, more particularly the 
'"" 
custody of Police. The distinction between an ordin~ry order of bail and an 
order under Section 438 Cr. P.C. is that whereas the former is granted after 
l 
H 
2 
SUPREME COURT REPORTS 
(2007] 3 S.C.R. 
A 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. (Para 61 (5-F-GI 
Gur Baksh Singh v. State of Punjab, (198012 SCC 565, referred to. 
B 
2. Section 46(1) Cr.P.C. 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 Cr. P.C. is intended to confer conditional immunity 
C from the touch as envisaged by Section 46(1) of the Code or any confinement. 
(Para 6) (.5-H; 6A) 
D 
Balachand Jain v. State of Madhya Pradesh, AIR (1977) SC 366, 
referred to. 
3. 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 unless the accused is 
arrested, and therefore, it is only on an arrest being effected the order becomes 
operative. The power exercisable under Section 438 is somewhat extraordinary 
in character and it is only in exceptional cases where it appears that the person 
E 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 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 
F case of an anl:icipated accusation of non-bailable offence. The object which is 
sought to be achieved by Section 438 Cr. P.C. is that the moment a person is 
arrested, if h1! 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. (Para 61 (6-B-EI 
G 
Salauddin Abdu/samad Shaikh v. Stale of Maharashtra, AIR (1996) SC 
1042, referred to. 
4. In view of the clear language of Section 439 and in view of the decision 
of this Court there cannot be any doubt that unless a person is in custody, an-· ~ 
application for bail under Section 439 Cr. P.C. would not be maintainable. 
H 
(Para 121 (8-FI 
•
.. '. 
-< 
> 
D.K. GANESH BABU v. P.T. MANOKARAN 
3 
KL. Verma v, State and Anr., (1996) 7 SCALE 20, overruled, 
Niranjan Singh and Anr. v, Prabhakar Rajaram Kharote and Ors., AIR 
(1980) SC 785, relied on, 
Nirm
Excerpt shown. Read the full judgment & AI analysis in Lexace.