LexSUNITA DEVI versus STATE OF BIHAR AND ORS.
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SUNITA DEVI A v. STATE OF BIHAR AND ORS. DECEMBER 6, 2004 [ARIJIT PASAYAT AND S.H. KAPADIA, JJ.] B Code of Criminal Procedure, 1973: Sections 438 and 439-Distinction between-Held: Order under S. 438 is passed in anticipation of arrest and becomes effective at the very C moment of arrest whereas the order under S. 439 is passed after arrest. Section 438-Anticipatory bail-High Court granted blanket protection for unlimited duration-Correctness of-Held : Anticipatory bail can be granted for a limited during only-Grant of unconditional protection is D clearly untenable and is liable to be set aside. Section 439-"Custody"-Meaning of-Held: The expression "custody" must be taken to be a compendious expression referring to the events on the happening of which the Magistrate can entertain the bail petition of the accused-Hence, a person who is under the control of the court or E is in the physical hold of an officer with coercive power is in "custody" for the purpose of S. 439. Section 439-Bail-Application for-Maintainability-Held: Unless a person is in custody an application for bail is not maintainable. F Sections 207 and 208-Supply of police report and other documer.ts to the accused-Supervision notes of supervisory police officers-Entitlement to-Held: Supervision notes are not parts of the papers supplied to the accused-Only those documents which are sought to be utilized against an accused are to be supplied to him-Non-supply of documents is not G necessarily prejudicial to the accused-Court has to give a definite finding about the prejudice or otherwise-Supervision notes cannot be. utilized by the prosecution as a piece of material or evidence against the accused- Accused also cannot make any reference to them-If any reference thereof is made before any court they are not to be taken note of-Directions to H 707 708 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R. A ensure confidentiality of supervision notes issued B c D E F Words & Phrases: "Per incuriam "-Meaning of "Custody' '-Meaning of-In the context of S. 439 of the Code of Criminal Procedure, 1973. "Move"-Meaning of-Comprises all things necessary to be done by a litigant to obtain an order of the court direczing the relief sought. The appellant filed a complaint against the respondent who filed an application before the High Court for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973, which was allowed. Hence the appeal. On behalf of the appellant, it was contended that the blanket protection given by the High Court was contrary to the scheme of the Code and the legislative intent: that the protection could be given only for a limited period in order to enable the accused to apply for bail under Section 439 of the Code and that the accused must be in custody for moving such an application. Allowing the appeal, the Court HELD: I. There is no question of bail unless a person is arrested in connection with a non-bailable offence by the notice. The distinction between an order in terms of Section 438 and that in terms of Section 439 of the Code of Criminal Procedure, 1973 is that the latter is passed after arrest where the former is passed in anticipation of arrest and becomes effective at the very moment of arrest. [713-E-F) G Bal Chand Jain v. State of MP., [1978) 4 SCC 572 and Gur Baksh Singh v. State of Punjab, (1980) 2 SCC 565,. relied on. 2. The view taken in K.L. Verma's case the anticipatory bail may be granted for a duration which may extEnd to the date on which the H bail application is disposed of or even a few days thereafter to enable SUNITA DEVI v. STATE 709 the accused persons to move the higher court is to by treated as having A . been rendered per incuriam. (714-G] K.L. Verma v. State, (1996) 7 SCALE 20, held per incuriam. State v. Ratan Lal Arora, [2004) 4 SCC 590 and State of U.P. v. B Synthetics and Chemicals Ltd., [1991) 4 SCC 139, relied on. Young v. Bristol Aeroplane Co. Ltd., [1944] 2 All ER 293, referred to. 3. Unless a person is in custody, an application for bail under Section 439 of the Code would not be maintainable. [715-D-E) Abdulsamad Shaikh v. State of Maharashtra, AIR (1996) SC 1042 and Nirmal Jeet Kaur v. State of MP., JT (2004) 7 SC 161, relied on. 4. A person who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439 of the Code. The expressi
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