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2005(2) Supreme 363
Supreme Court of India
(From Calcutta High Court)
Arijit Pasayat & S.H. Kapadia, JJ.
Adri Dharan Das —Appellant
versus
State of West Bengal —Respondent
Criminal Appeal No. 326 of 2005
(Arising out of SLP (Crl.) No. 250 of 2004)
Decided on 21-2-2005
Counsel for the Parties :
For the Appellant : Gopal Subramanium, Sr. Advocate, Rohit Tandon and Hari Shankar K., Advocates.
For the Respondent : U.U. Lalit, Sr. Advocate, Debobroto Bandhyopadhyay, Bijan Kumar Ghosh, G.V.R. Chaudhary, Abhishek Sarkar, Kazi Safiulla, Advocate P.P., High Court, Calcutta, Tara Chandra Sharma, Ms. Neelam Sharma, Tarun Dutt and Ajay Sharma, Advocates.
Important points
1. Protection in terms of Section 438 Cr.P.C. is for a limited period during which regular Court has to be moved for bail.
2. While dealing with an application under Section 438 Cr.P.C., Court cannot restrain arrest.
Held : It is well-known that 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 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. (Para 7)
After analyzing the crucial question is when a person is in custody, within the meaning of Section 439 of the Code, it was held in Nirmal Jeet Kaur’s case (supra) and Sunita Devi’s case (supra) that 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. (Paras 14 and 15)
(ii) Criminal Procedure Code, 1973—Section 438—Bail in anticipation of arrest—Whether Court could pass an interim order not to arrest the applicant where application under Section 438 Cr.P.C. was pending? No.
Held : An application under Section 438 of the Code can be moved only by a person who has not already been arrested. Once he is arrested, his remedy is to move the concerned Court either under Section 437 or Section 439 of the Code. In the very nature of the direction which the Court can issue under Section 438 of the Code, it is clear that the direction is to be issued only at the pre-arrest stage. The direction becomes operative only after arrest. The condition precedent for the operation of the direction issued is arrest of the accused. This being so, the irresistible inference is that while dealing with an application under Section 438 of the Code the Court cannot restrain arrest. (Para 18)
The role of the investigator is well-defined and the jurisdictional scope of interference by the Court in the process of investigation is limited. The Court ordinarily will not interfere with the investigation of a crime or with the arrest of accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code. (Para 19)
Judgment
Arijit Pasayat, J.—Leave granted.
2. Refusal by a Division Bench of the Calcutta High Court to accept prayer made by the appellant to extend the protection available under Section 438 of the Code of Criminal Procedure, 1973 (in short the ‘Code’) is assailed by him. A brief reference to the factual position would suffice.
3. Complaint was lodged by one Dayaram Das in the Court of Chief Judicial Magistrate, Alipore, Calcutta (in short ‘CJM’) alleging commission of various offences more particularly those covered under Sections 406, 467, 468, 471 and 420 of the Indian Penal Code, 1860 (in short the ‘IPC’). This complaint was filed against the appellant and five others. It was claimed that the complainant Dayaram Das, who was the President of Calcutta Branch/Temple situated at 3C, Albert Road, Calcutta and manager of the premises at 22, Gurusaday Road, Calcutta was appointed by the International Society for Krishna Consciousness (in short the ‘ISKCON’) Bureau in accordance with Rules and Regulations. Appellant was the previous President, who was suspended by the Bureau on 2nd March, 2001 and was removed on 17th March, 2002. The other persons named in the complaint (accused Nos. 2 to 6) were stated to be his associates. Alleging that the accused persons had committed various offences, prayer was made to Learned Judicial Magistrate for taking action in terms of Section 156(3) of the Code. The CJM on 13th May, 2002 directed the officer in charge of the Ballygunj Police Station to investigate after taking the petition of complaint as FIR and to submit report before Learned Sub-Divisional Judicial Magistrate (in short the ‘SDJM’). The case was registered as Ballygunj P.S. Case No. 81 dated 3.6.2002 in Bollygunj Police Station.
9. According to the appellant they were victims of a conspiracy. Large number of cases were pending between the parties which have been filed. Having failed in their attempt to get any relief from the Civil Courts, the complainant and his associates falsely instituted the complaint. An application in terms of Section 438 of the Code was filed before the Calcutta High Court which by the impugned order was rejected.
5. Mr. Gopal Subramanium, learned Senior Counsel appearing for the appellant submitted that without properly appreciating the factual background and the points involved in the application, the prayer should not have been rejected summarily. Two of the accused persons have been granted protection in terms of Section 438 of the Code by the Division Bench of the Calcutta High Court. The appellant is always willing to cooperate in the investigation. The efforts of the respondent are to humiliate the appellant in public and cause damage to his reputation. In the aforesaid background it is submitted that a case for interference is made out. It was submitted that in case the prayer for protection in terms of Section 438 of the Code is not accepted the appellant may be permitted to surrender before the concerned Court on 17/3/2005 and apply for bail. It was prayed that directions may be given for early disposal of the applications by the said Court and in case the prayer is not accepted by the lower Court, by the District and Sessions Court who shall be moved, it was submitted that the appellant would like to come to Calcutta on 10th of March, 2005 and is willing to co-operate in the investigation but he should not be arrested till the disposal of the application for bail before learned SDJM, Alipore.
6. In response, learned counsel appearing for the respondent submitted that there is no provision in the Code for the direction not to arrest and if such a direction is given it would be contrary to law. It was also submitted that the appellant has not made out any case for interference and his conduct is not above board. Considering the serious nature of the allegations, it is not a fit case where any order in terms of Section 438 of the Code can be passed. The appellant has abused process of law. He had n
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