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2005 Supreme(Cal) 474
High Court Of Calcutta
Amit Talukdar, Sankar Prasad Mitra
JOYDEB PRADHAN - Appellant
Versus
STATE - Respondent
C. R. M. 3503 Of 2005
Decided On : 07/28/2005
GORDHANDAS, S.N.S.ALQUADRI
An order under section 438 of the CrPC is operative for a limited duration and the accused must be in custody to file an application for bail under section 439 of the CrPC.
Headnote:
BAIL - SECTION 438 - SECTION 439 - CUSTODY - INTERPRETATION - APPLICABILITY - COURT ANALYSIS AND CONCLUSION - BINDING PRECEDENT - RATIO DECIDENDI - FINAL DECISION - MAIN LEGAL POINT
Fact of the Case:
The petitioners, who were accused in a criminal case, obtained an order under section 438 of the Code of Criminal Procedure (CrPC) from a Division Bench of the Calcutta High Court, which protected them from arrest for a period of two weeks. Emboldened by this order, the petitioners surrendered before the learned Sub-Divisional Judicial Magistrate, Haldia, who directed them to bring a confirmation bail order from the appropriate authority instead of taking them into custody. The petitioners challenged this order by filing an application under section 439 of the CrPC before the High Court.
Finding of the Court:
The High Court held that the order of the learned Magistrate was unsustainable as it violated the ratio of the decisions of the Supreme Court in Nirmal Jeet Kaur vs. State of M.P. and Anr., Sunita Devi vs. State of Bihar, and Adri Dharan Das vs. State of W.B., which laid down that an order under section 438 of the CrPC is operative for a limited duration and the accused must be in custody to file an application for bail under section 439 of the CrPC.
Issues: 1. Whether the order of the learned Magistrate, directing the petitioners to bring a confirmation bail order from the appropriate authority instead of taking them into custody, was sustainable in law? 2. Whether the petitioners were required to be in custody to file an application for bail under section 439 of the CrPC?
Ratio Decidendi: 1. The High Court held that the order of the learned Magistrate was unsustainable as it violated the ratio of the decisions of the Supreme Court in Nirmal Jeet Kaur vs. State of M.P. and Anr., Sunita Devi vs. State of Bihar, and Adri Dharan Das vs. State of W.B., which laid down that an order under section 438 of the CrPC is operative for a limited duration and the accused must be in custody to file an application for bail under section 439 of the CrPC. 2. The High Court held that the petitioners were required to be in custody to file an application for bail under section 439 of the CrPC, as the fundamental requirement for making an application under section 439 is that the accused should be in custody.
Final Decision: The High Court set aside the impugned order of the learned Magistrate and directed the petitioners to surrender before the learned Magistrate, who was directed to dispose of their application under section 439 of the CrPC in the ratio of the decisions of the Supreme Court in Nirmal Jeet Kaur vs. State of M.P. and Anr., Sunita Devi vs. State of Bihar, and Adri Dharan Das vs. State of W.B.
( 1 ) AN otherwise innocuous application under section 439 of the Code of criminal Procedure (for short 'the said Code') which under ordinary circumstances could have been disposed of in the usual fashion, however, has hit the Hornet's nest and a situation has so bubbled up that not only the management of G. R. Case No. 159 of 2005 before the Court of the learned Sub-Divisional Judicial Magistrate, Haldia suffers a jinxed deliberation but the same has a wider ramification which has to be addressed by the Court, keeping in mind the issue which has cropped up and covers several such situations that take place daily in the various Magistracies. Background:
( 2 ) A Division Bench of this Court in C. R. M. No. 3000 of 2005 on April 13, 2005 allowed the prayer of the petitioners in terms of section 438 of the said code who apprehended arrest in connection with Nandigram Police Station case No. 33/05 under sections 341, 448, 323, 325, 354, 308, 506 and 34. It was directed that the said order under section 438 of the said Code would remain operative for a period of two (2) weeks. Cause of Action:
( 3 ) EMBOLDENED with the said order in connection with C. R. M. No. 3000 of 2005 the petitioners surrendered before the learned Sub-Divisional Judicial magistrate, Haldia on 19. 4. 05 and the learned Magistrate fixed 21. 4. 05 for looking into the case dairy. Impugned Order:
( 4 ) ON 21. 4. 05 upon considering the materials in the case diary the learned magistrate was of the view that there are 'sufficient materials' against the accused persons and accordingly, he directed: "so the accused persons are directed to bring the confirm bail order from appropriate authority instead of taken into custody as per decision of K. L. Verma's case. . . . . . . . . . . . . " and fixed 30. 4. 05 for further order and appearance of the accused. Prelude:
( 5 ) FAILING to reconcile themselves with the said order impugned of the learned magistrate, Haldia, the petitioners preferred an application under section 439 of the said Code being C. R. M. No. 3503 of 2005 before this Court. Preference:
( 6 ) A learned Single Judge by his Lordship's order dated 02. 5. 05 upon hearing the learned Counsels for the petitioners and the State was of the opinion: 'unless and until the accused persons are taken into custody the prayer for bail before this Court does not arise at all. ' Accordingly, His Lordship directed the matter to be placed before the Division Bench for passing appropriate orders. At the Ban
( 7 ) SUBMISSIONS were made on merit with regard to the non-involvement of the petitioners in the present case and the fact that since they were already protected with an order in terms of section 438 of the said Code by a Division bench of this Court the impugned order cannot be sustained. Per Contra:
( 8 ) LEARNED Senior Government Advocate submits that the order impugned cannot be sustained and has to be set aside in view of the settled position of law. Relevant Statute:
( 9 ) SECTIONS 439 and 438 of the said Code. "439. Special powers of High Court or Court of Session regarding bail.- (1) High Court or Court of Session may direct- (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triabale, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. (2) A High Court or C
