LexNARESH KUMAR YADAV versus RAVINDRA KUMAR AND ORS.
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/ y- NARESH Kl JMAR Y ADAV A v. RA VINDRA KUMAR AND ORS. OCTOBER 23, 2007 B [DR ARIJIT PASA YAT AND LOKESHWAR SINGH f' PANTA,JJ.] .7 Code of Criminal Procedure, 1973: c s.438-Protection under-Held: Is for limited duration during which regular Court has to be moved for bail-Applicant has to show that he has 'reason to believe' that he may be arrested in non-bailable offence-Belief has to be founded on reasonable grounds only if there is something tangible to show that his apprehension that he may be D arrested is genuine-Direction that applicant be released on bail ·~ "whenever arrested for whichever offence whatsoever" should not be issued as it would serve as blanket to protect any and every kind of allegedly unlawful activity-On facts, High Court wrongly noted that accused persons were not named in FIR and granted protection under s.438-Hence, order of High Court not sustainable-Bail- E Anticipatory bail. ss.438 and 439-Distinction between-Discussed. --! 'r ss. 207 and 208-0bject of-Held: Is to enable accused to defend himself properly. F Case diary-Informant and accused, at hearing of bail applications referring to portions of case diary in support of their stand-Held: Legally they could not have access to these official records-Hence, courts to take serious note of the same. G """" Words and phrases: 'reason to believe '-Connotation of-Jn the context of s. 438 of 615 H 616 SUPREME COURT REPORTS (2007] 11 S.C.R. A Code of Criminal Procedure, 1973. The present appeal is filed by the informant challenging the order of High Court allowing the prayer of respondent nos. 1, 2 and 3 for seeking protection in terms of s.438 Cr.P .C. on the ground that i while allowing so, the High Court had not kept in view the parameter B for granting such protection; that the High Court had preempted the c framing of charges and also had wrongly noted that accused persons A were not named in the FIR. ~ Disposing of the appeal, the Court ;15 HELD: 1.1. The High Court has wrongly noted that the accused ·persons were not named in the FIR; in fact they were specifically 'named. [Para 5] (620-E] ~1~\· - . - 1 • 'Ji\ "\' 1.2. Thefacilitywhich s. 438 Cr.P.C. gives is generally referred D \t,? ~s;• anticipatory _bail'. This expression which was used by the Law C~mmission in its 41st Report is neither used in the section nor in ~.h \ • •\, , ' .,its marginal note. But the expression 'anticipatory bail' is a l\j \;!'\\., ' . . . convenient mode of indication that it is possible to apply for bail in IHI I\ 11~\\ °'anti~ipation of arrest. Any order of bail can be effective only from 1~)\ ·-l · ~<\ •. E th\~ ~~tf e of arrest of the accused. 'Bail' is basically release from restraint, more particularly the custody of Police. The distinction between an ordinary order of bail and an order under s.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 p ~~}~'ili~<i ii'ifanticipation of arrest and is therefore effective at the very moment of arrest. (Para 6] [620-F, G, H; 621-A] \ . ·:' Gur·B'alsh Singh V.' State of Punjab, (1980] 2 sec 565, relied bit~-~.\ ~ .. ~ ,( l\\f\ . ' , . ''"I J 0 •\\_U "> ")',\\ 'Q. WharfOIJ;~S Law Lexicon, referred to. 2.1. The power exercisable under s.438 is somewhat extraordinary in character and it is only in exceptional cases where \it ~ppea'rs th'afthe person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an ·H offence is not likely to otherwise misuse his liberty then power is to .. r NARESHKUMAR YADAVv. RA VINDRAKUMAR 617 ...,.__ be exercised under s.438. The power being of important nature it is A entrusted only to the higher echelons of judicial forums, i.e. th~ Court of Session or the High Court. It is the power exerdsable in case of an anticipated accusation of non-bailable offence. The object which is sought to be achieved by s.438 of the Code is that the moment a person is arrested, if he has already obtained an order B r from the Court of Session or High Court, he shall be released ;r· immediately on bail without being sent to jail. [Para 6] [621-D, E, FJ Balachand Jain v. State of Madhya Pradesh, AIR (1977) SC 366, c ref erred to. 2.2. The protection in terms of s.438 is for a limited duration during which the regular Court has to be moved for bail. Obvious
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