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2004(8) Supreme 760
SUPREME COURT OF INDIA
(From Patna High Court)
Arijit Pasayat & S.H. Kapadia, JJ.
Sunita Devi -Appellant
versus
State of Bihar and Anr. -Respondents
Criminal Appeal No. 1424 of 2004
(Arising out of SLP (Crl.) No. 4601 of 2003)
Decided on 6-12-2004
Counsel for the Parties :
For the Appellant : Vijay Kumar, Sunil Verma and Aniruddha P. Mayee, Advocates.
For the Respondents : Mrs. Sunita R. Singh, B.B. Singh, Sumit Kumar, Ajay Amritraj and D.K. Sinha, Advocates.
Held : In Salauddin s case (supra) also this Court observed that the regular Court has to be moved for bail. Obviously, an application under Section 439 of the Code must be in a manner in accordance with law and accused seeking remedy under Section 439 must ensure that it would be lawful for the Court to deal with the application. Unless the applicant is in custody his making application only under Section 439 of the Code will not confer jurisdiction on the Court to which the application is made. The view regarding extension of time to "move" the higher Court as culled out from the decision in K.L. Verma s case (supra) shall have to be treated as having been rendered per incuriam, as no reference was made to the prescription in Section 439 requiring the accused to be in custody. In State through S.P. New Delhi v. Ratan Lal Arora (2004) 4 SCC 590) it was held that where in a case the decision has been rendered without reference to statutory bars, the same cannot have any precedent value and shall have to be treated as having been rendered per incuriam. The present case stands at par, any precedent value and shall have to be treated as having been rendered per incuriam. The present case stands at par, if not, on a better footing. The provisions of Section 439 do not appear to have been taken note of. (Para 18)
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. 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. These aspects were recently highlighted in Nirmal Jeet Kaur v. The State of Madhya Pradesh and Anr. (JT 2004(7) SC 161). Therefore the order of the High Court granting unconditional protection is clearly untenable and is set aside. However the petitioner is granted a month s time from today to apply for regular bail after surrendering to custody before the concerned Court which shall deal with the application in accordance with law. (Para 20 to 22)
(ii) Criminal Procedure Code, 1973-Sections 207 and 208-Supervision notes-Cannot be utilized by prosecution as piece of material or evidence-Accused cannot make any reference to them for any purpose-While supplying police papers, supervision notes are not to be given. (Para 27)
JUDGMENT
Arijit Pasayat, J.-Leave granted.
2. Protection to the respondent No.2-Anuj Kumar under Section 438 of the Code of Criminal Procedure 1973 (in short the Code ) is assailed by the appellant.
3. A brief reference to the factual aspects would suffice. On 13.2.2002 the appellant (hereinafter referred to as the informant ) lodged a written complaint before the officer-in-charge, Sirdala P.S. Nawadah that on 13.2.2002 at about Panchayat armed with revolver, Anil Kumar armed with lathi, Sunil Kumar armed with lathi and others armed with weapons entered into her house and the said Anuj Kumar demanded Rs. 1000/- from her elder brother Suresh Vishwakarma. When Suresh Vishwakarma refused to give the same showing his inability to arrange such a huge amount, Anuj Kumar assaulted him by the butt of revolver on his head and below his eye. When the informant came for his rescue, she too was assaulted by fists and legs and the said Anuj Kumar demonstrating the revolver said that since her brother has not given the money, therefore outraged the modesty of his sister in the presence of all. Saying this, the headman Anuj Kumar pulled the informant-Sunita Devi, put her on the ground and lifting her petticoat and saree lied down on her and attempted to commit rape on her. Further, when seeing the entire incident the informant s sister Usha Devi came to rescue her, Anil Kumar hit her on her left thumb and legs with lathi. Thereafter, Anil and Sunil assaulted the sons of her brother Suresh Vishwakarma, namely Amarjit and Sujit and her mother with lathi on their faces. Then the informant s family started crying and hearing this the villagers namely Chhotey Lal Pandit, Puran Singh and others came and have seen the incident. However, because of the fear of revolver they could not apprehend accused persons. The accused Anuj Kumar thereafter fired thrice in the air from his revolver and exhorted his men to loot the shop of Suresh Vishwakarma and then all of them looted the articles worth Rs. 10,000/- from his shop which included watches, radio, loudspeakers etc.
4. On the basis of the said complaint of the informant, FIR was lodged on 15.2.2002 which was registered as Sirdala P.S. Case No. 15/2002 under Sections 384/376/511 read with Section 34 of the Indian Penal Code 1860 (in short the IPC). It appears that on the same day, an FIR was lodged by Anuj Kumar alleging commission of offences punishable under Sections 341/323 read with Section 34 IPC against the informant s brother Suresh Vishwakarma and Chhotey Lal Pandit. The respondent No.2 filed an application for protection in terms of Section 438 of the Code before the Patna High Court and the same was numbered as Criminal Misc. 14464 of 2003. By the impugned Order dated 4.7.2003 the protection was granted, inter-alia, on the following terms:
"Considering all the facts and circumstances of the case the prayer for anticipatory bail is allowed. In the event of arrest/surrender Petitioner Anuj Kumar shall be enlarged on bail on furnishing bail bond of Rs.10,000/- with two sureties of the like amount each to the satisfaction of the Chief Judicial Magistrate Nawadah in connection with Sirdala P.S. Case No. 15/2002, subject to the condition laid down under Section 438(2) Cr.P.C."
5. In support of the present appeal, it has been contended that the blanket protection given is contrary to the scheme of the Code and the legislative intent. The protection if any can be given for a limited period in order to enable the accused to apply for bail in terms of Section 439 of the Code before the appropriate Court. The applicant has to be in custody for moving such application.
6. Per contra, learned counsel for respondent No. 2 submitted that in view of what has been stated in K.L. Verma v. State and Another (1996 (7) SCALE 20), protection given by the High Court is clearly in order. It was submitted that for the purpose of making an application in terms of Section 439 of the Code, when the same is pursuant to an or
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