Holding

An anticipatory bail order under Section 438 is operative only upon arrest and cannot be used to restrain arrest or to grant bail without surrender; therefore, the High Court's stipulated conditions are invalid and the accused must surrender and apply for bail under Section 439.

Summary

The complainant appealed against a Madras High Court order that granted anticipatory bail under Section 438 of the Cr.P.C. to three accused who were apprehending arrest in a dowry‑related murder case. The High Court had stipulated detailed conditions and effectively released the accused without requiring their surrender. The Supreme Court held that an order under Section 438 becomes operative only at the moment of arrest and cannot restrain arrest or grant bail before surrender. Consequently, the conditions imposed by the High Court were disapproved. The Court directed the accused to surrender and to file a bail application under Section 439 within four weeks, after which the matter would be dealt with on its merits. The appeal was partly allowed.

Issues considered

Whether an anticipatory bail order under Section 438 can be effective without the accused’s surrender.
Whether a court may impose conditions that effectively release the accused prior to arrest.
Whether the High Court can restrain arrest in an anticipatory bail application.
Whether the accused must seek bail under Section 439 after surrender.

Legislation cited

Code of Criminal Procedure, 1973s. 438, s. 439, s. 46(1)
Dowry Prohibition Act, 1961s. 4
Indian Penal Code, 1860s. 304B

Subjects

anticipatory bailSection 438Section 439bail conditionsarrestcriminal procedurenon‑bailable offenceinvestigation interference

Judgment

D.K. GANESH BABU A
11.

P.T. MANOKARAN AND ORS.

FEBRUARY 23, 2007

[Dr.ARIJITPASAYAT ANDR.V.RAVEENDRAN,JJ.] B

Code of Criminal Procedure, 1973-s. 438-Anticipatory bail-Scope
r and nature of-Stipulation of terms for release in the order granting bail-
Propriety of-Held: Power under section 438 is of extraordinary character-
it has to be exercised only in exceptional cases where there is apprehension
c
of false implication or where it appears that accused would not misuse his
liberty-The condition precedent for the operation of the directions issued
under section 438, is arrest of the accused-While entertaining such
application, restraining arrest, will amount to interference in the investigation,
which is not permissible-In the facts of the case, stipulation of conditions D
by High Court is disapproved-Direction to the accused to move bail
application in terms of s. 439 as he has already surrendered

Bail-Ordinary bail and Anticipatory Bail-distinction between.

Words and Phrases-'Bail'-Meaning of E
Respondent Nos. I to 3 filed an application under section 438 Cr.P.C.
for anticipatory bail, as they were apprehending arrest in a criminal case
under investigation. The application was disposed of by High Court stipulating
the terms of release in the order.
F
In appeal to this Court, the complainants contended that as the terms
)
for the release had been stipulated in the order itself, actually the respondents
were granted bail without surrender.

Partly allowing the appeal, the Court.
G
HELD: 1. Any order of bail can be effective only from the time of arrest
• of the accused. Bail is basically release from restraint, more particularly the
custody of Police. The distinction between an ordin~ry order of bail and an
'""
order under Section 438 Cr. P.C. is that whereas the former is granted after
l
H
2 SUPREME COURT REPORTS (2007] 3 S.C.R.

A arrest, and therefore means release from custody of the Police, the latter is
granted in anticipation of arrest and is therefore effective at the very moment
of arrest. (Para 61 (5-F-GI

Gur Baksh Singh v. State of Punjab, (198012 SCC 565, referred to.

B 2. Section 46(1) Cr.P.C. the Code, which deals with how arrests are to
be made, provides that in making an arrest the Police officer or other person
making the same "shall actually touch or confine the body of the person to be
arrested, unless there be a submission to the custody by word or action". The
order under Section 438 Cr. P.C. is intended to confer conditional immunity
C from the touch as envisaged by Section 46(1) of the Code or any confinement.
(Para 6) (.5-H; 6A)

Balachand Jain v. State of Madhya Pradesh, AIR (1977) SC 366,
referred to.

3. Bail is ordinary manifestation of arrest, that the Court thinks first
D 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
E 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. The power being of an
important nature it is entrusted only to the higher echelons of judicial forums,
i.e. the Court of Session or the High Court. It is the power exercisable in
F case of an anl:icipated accusation of non-bailable offence. The object which is
sought to be achieved by Section 438 Cr. P.C. is that the moment a person is
arrested, if h1! has already obtained an order from the Court of Session or
High Court, he shall be released immediately on bail without being sent to
jail. (Para 61 (6-B-EI

G Salauddin Abdu/samad Shaikh v. Stale of Maharashtra, AIR (1996) SC
1042, referred to.

4. In view of the clear language of Section 439 and in view of the decision •
of this Court there cannot be any doubt that unless a person is in custody, an-· ~
application for bail under Section 439 Cr. P.C. would not be maintainable.
H (Para 121 (8-FI
D.K. GANESH BABU v. P.T. MANOKARAN 3
..
'. KL. Verma v, State and Anr., (1996) 7 SCALE 20, overruled, A
-<
Niranjan Singh and Anr. v, Prabhakar Rajaram Kharote and Ors., AIR
(1980) SC 785, relied on,

Nirmal Jeet Kaur v, State of M.P. and Anr., (20041 7 SCC 558; Sunita
Dev iv. State ofBihar and Anr., Criminal Appeal arising out of SLP (Crl.) No. B.
4601 of 2003 disposed of by Supreme Court oil 6.12.2004, referred to.

:i. The direction which a Court can issue under Section 438 Cr. P.C. is
that in the event of arrest of an accused on an accusation of committing a
non-bailable offence, he shall be released on bail subject to such conditions
as the Court may deem fit to impose. An application under Section 438 Cr. C
P.C. 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 Cr. P.C. In the very nature of the direction which the Court
can issue under Section 438 Cr. P.C. 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 D
arrest of the accused. This being so, the irresistible inference is that while
dealing with an application under Section 438 Cr. P.C. the Court cannot
restrain arrest. (Para 131 [8-G-H; 9-A-Bl

6. The legality of the proposed arrest cannot be gone into in an E
application under Section 438 Cr.P.C. 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 Cr.P.C. will amount to interference in the investigation, F
which cannot, at any rate, be done under Section 438 Cr. P.C. [Para 141
> (9-D-EI

Adri Dharan Das v. State of West Bengal, 1200514SCC303, relied on.
7. Stiplation of conditions by the High Court is disapproved. Hence, the G
directions given by High Court are modified. Since the respondents have already
surrendered and have been granted bail in terms of the High Court's
-{ directions, they shall surrender before the concerned court and shall move
for bail in terms of Section 439 Cr. P.C. On that being done the case shall be
considered in its proper perspective uninfluenced by the fact that this Court
has disapproved stipulation of conditions. !Para 16J (9-G-H; 10-Al H
4 SUPREME COURT REPORTS [2007] 3 S.C.R.

A CRlMINAL APPELLATE JURJSDICTION : Criminal Appeal No. 249 of
2007.

From the Final Order/Judgment dated 11.7.2006 of the High Court of
Judicature at Madras in Criminal O.P. No. 17233/2006.

B Rajiv Dutt, G. Siva Balamurugan, Y. Arvanagiri, Joel Saravanan, L.K.
Senthil and L.K. Pandey for the Appellant.

L.N. Rao, C.K. Sasi and V.G. Pragasam for the Respondents.

The Judgment of the Court was delivered by
c DR. ARIJIT PASAYAT, J. I. Leave granted.

2. Challenge in this appeal is to the order passed by a learned Single
Judge of the Madr:i.s High Court while dealing with an application filed in
tenns of Section 438 of the Code of Criminal Procedure, 1973 (in short the
D 'Code') .This Appeal has been filed by the complainant. The applicants before
the High Court who are respondents I to 3 herein, filed the application as they
were apprehending arrest in crime No. 1358 of 2006 which was under
investigation of the Inspector of the concerned circle. It was alleged in the
complaint that because of the dowry demands, the victim committed suicide
and the accused-respondent Nos. I to 3 apprehended arrest for the alleged
E offence under Section 304 B of the Indian Penal Code, I 860 (in short the '!PC')
and Section 4 of the Dowry Prohibition Act, 1961 (in short the 'Act').

3. The application was disposed of by the learned Single judge inter-alia
with the following observations and directions:

F ], each of them should execute a bond for a sum of Rs. 25 .000/-
(Rupees Twenty Five Thousand only) together with two sureties
each for the like sum to the satisfaction of XVII Metropolitan
Magistrate Saidapet, Chennai.

ii. The first petitioner shall appear before the respondent police for
G a period of two weeks daily at I0.30.a.m. and thereafter the first
petitioner shall appear before the respondent police as and when
required.

iii. The petitioners 2 and 3 shall report before the respondent police
for a period of three days from 10.30. a.m. to 12. 30. noon everyday
H and thereafter they shall be available for interrogations as and
D.K. GANESH BABU v. P.T. MANOKARAN [PASAYAT, .l.] 5
when required. A
1v. The petitioners I and 2, in consultation with the first accused,
who is the husband of the victim in this case, shall take all
necessary steps to band ever all the articles belonging to the
victim viz. gold and diamond jewellery, house held articles
including the silver articles and the cash to the father of the B
victim within a period of two weeks after our execution of this
order.

The petitioners shall surrender before the court referred to above for
executing the bond and furnishing sureties within two weeks from the
date of receipt of copy of this order, falling which, this order shall C
stand cancelled."

4. The only point urged in support of the appeal by the informant -
appellant is that the parameters to be kept in view, while dealing with an
application under Section 438 of the Criminal Procedure Code, 1973 (in short
the 'Code'), had not been kept in view. It was submitted that actually the D
respondents have been granted bail without surrender, since the terms for
release have been stipulated in the order itself.

5. Learned counsel for the respondent Nos. l to 3 on the other hand
submitted that the materials on record clearly justified passing of the order
as done, and there is nothing illegal in the order to warrant any interference. E
Further the respondents have already surrendered and have been granted bail
on the terms stipulated by Learned Single Judge.

6. The facility which Section 438 of the Code gives is generally referred
to as 'anticipatory bail'. This expression which was used by the Law Commission F
in its 41 st Report is neither used in the section nor in its marginal note. But
the expression 'anticipatory bail' is a convenient mode of indication that it is
possible to apply for bail in anticipation of arrest. Any order of bail can be
effective only from the time of arrest of the accused. Wharton's Law Lexicon
explains 'bail' as 'to set at liberty a person arrested or imprisoned, on security
being taken for his appearance.' Thus bail is basically release from restraint, G
more particularly the custody of Police. The distinction between an ordinary
order of bail and an order under Section 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 granted in anticipation of arrest and is therefore effective
at the very moment of arrest.(See: Gur Baksh Singh v. State of Punjab, [1980] H
2 SCC 565). Section 46(1) of the Code, which deals with how arrests are to
6 SUPREME COURT REPORTS [2007] 3 S.C.R. ,.
A be made, provides that in making an arrest the Police officer or other person
making the same "shall actually touch or confine the body of the person to
be arrested, unless there be a submission to the custody by word or action".
The order under Section 438 of the Code is intended to confer conditional
immunity from the touch as envisaged by Section 46( I) of the Code or any
confinement. The apex Court in Balachand Jain v. State of Madhya Pradesh,
B AIR (1977) SC 366 has described the expression 'anticipatory bail' as a misnomer.
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
C 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.
The power being of an important nature it is entrusted only to the higher
D echelons of judicial forums, i.e. the Court of Session or the High Court. It is
the power exercisable in case of an anticipated accusation of non-bailable
offence. The object which is sought to be achieved by Section 438 of the
Code is that the moment a person is arrested, if he has already obtained an
order from the Court of Session or High Court, he shall be released immediately
E on bail without being sent to jail.
7. Sections 438 and 439 operate in different fields. Section 439 of the
Code reads as follows:

"439. (!)A High Court or Court of Session may direct -
F (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 the Magistrate when releasing any
G person on bail be set aside or modified."

(underlined for emphasis)

8. It is clear from a bare reading of the provisions that for making an
application in terms of Section 439 of the Code a person has to be in custody.
H
D.K. GANESH BABUv. P.T. MANOKARAN [PASAYAT. J.) 7
Section 438 of the Code deals with "Direction for grant of bail to person A
apprehending arrest".

9. In Salauddin Abdulsamad Shaikh v. State of Maharashtra, AIR
(1996) SC 1042 it was observed as follows:

"Anticipatory bail is granted in anticipation of arrest in non-bailable B
cases, but that does not mean that the regular court, which is to try
the offender, is sought to be bypassed and that is the reason why the
High Court very rightly fixed the outer date for the continuance of the
bail and on the date of its expiry directed the petitioner to move the
regular court for bail. That is the correct procedure to follow because
it must be realised that when the Court of Sessions or the High Court C
is granting anticipatory bail, it is granted at a stage when the
investigation is incomplete and, therefore, it is not informed about the
nature of evidence against the alleged offender. It is, therefore,
necessary that such anticipatory bail orders should be of a limited
duration only and ordinarily on the expiry of that duration or D
ex•ended duration the court granting anticipatory bail should leave
it TO the regular court to deal with the matter on an appreciation of
evidence placed before it after the investigation has made progress or th~
charge-sheet is submitted'".

(Emphasis supplied) E

JO. Jn K.L. Verma v. State and Anr., (1996) 7 SCALE 20 this Court
observed as follows:

"This Court further observed that anticipatory bail is granted in
anticipation of arrest in non-bailable cases, but that does not mean F
that the regular court, which is to try the offender, is sought to be
bypassed. It was, therefore, pointed out that it was necessary that
such anticipatory bail orders should be of a limited duration only and
ordinarily on the expiry of that duration or extended duration the court
granting anticipatory bail should leave it to the regular court to deal
with the matter on an appreciation of evidence placed before it after G
the investigation has made progress or the charge-sheet is submitted.
By this, what the Court desired to convey was that an order of
anticipatory bail does not enure till the end of trial but it must be of
limited duration as the regular court cannot be bypassed. 111e limited
duration must be determined having regard to the facts of the case H
8 SUPREME COURT REPORTS [2007] 3 S.C.R.

A and the need to give the accused sufficient time to move the regular
court for bail and to give the regular court sufficient time to determine
the bail application. In other words, till the bail application is disposed
of one way or the other the court may allow the accused to remain
on anticipatory bail. To put it differently, anticipatory bail may be
granted for a duration which may extend to the date on which the
B bail application is disposed of or even a few days thereafter to
enable the accused persons to move the higher court, if they so
desire."

(Emphasis supplied)

c 11. In Nirmal JeetKaur v. State of M.P. and Anr., [2004] 7 SCC 558 and
Sunita Devi v. State of Bihar and Anr., Criminal Appeal arising out of SLP
(Cr!.) No. 4601 of2003 disposed of on 6.12.2004, certain grey areas in the case
of K.L. Verma's case (supra) were noticed. The same related to the observation
"or even a few days thereafter to enable the accused persons to move the
D Higher Court, if they so desire". It was held that the requirement of Section
439 of the Code is not wiped out by the above observations. Section 439
comes into operation only when a person is "in custody". In K.L. Verma's
case (supra) reference was made to Salauddin 's case (supra). In the said case
there was no such indication as given in K.l. Verma's case (supra), that a few
days can be granted to the accused to move the higher Court if they so
E desire. The statutory requirement of Section 439 of the Code cannot be said
to have been rendered totally inoperative by the said observation.

12. In view of the clear language of Section 439 and in view of the
decision of this Court in Niranjan Singh and Anr. v. Prabhakar Rajaram
F Kharote and Ors., AIR (I 980) SC 785, there cannot be any doubt that unless
a person is in custody, an application for bail under Section 439 of the Code
would not be maintainable. The question when a person can be said to be
in custody within the meaning of Section 439 of the Code came up for
consideration before this Court in the aforesaid decision.

G 13. The direction which a Court can issue under Section 438 of the Code
is that in the event of arrest of an accused on an accusation of committing
a non-bailable offence, he shall be released on bail subject to such conditions
as the Court may deem fit to impose. 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
H
D.K. GANESH BABU v. P.T. MANOKARAN !l'ASA YAT, J.] 9
Section 437 or Section 439 of the Code. In the very nature of the direction A
.. 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
B
Court cannot restrain arrest.

14. Ordinarily, arrest is a part of the process of investigation intended
.. to secure several purposes. The accused may have to be questioned in detail
regarding various facets of motive, preparation, commission and aftermath of
the crime and the connection of other persons, if any, in the crime. There may c
be circumstances in which the accused may provide information leading to
discovery of material facts. It may be necessary to curtail his freedom in order
to enable the investigation to proceed without hindrance and to protect
witnesses and persons connected with the victim of the crime, to prevent his
dis-appearance to maintain law and order in the locality. For these or other D
reasons, arrest may become an inevitable part of the process of investigation.
The legality of the proposed arrest cannot be gone into in an application
under Section 438 of the Code. 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.
E
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 s·ection 438 of the Code.

15. The aforesaid aspects have been highlighted in Adri Dharan Das F
v. State of West Bengal, [2005] 4 SCC 303).

16. In view of what has been stated above some of the directions, given
by learned Single Judge, _as quoted above, are not in line with what has been
stated in Adri Dharan Das 's case (supra). Accordingly we modify the directions.
Since the respondents have already surrendered and ha.ve been granted bail G
in terms of the High Court's directions, they shall s~rrender before the
concerned court and shall move for bail in terms of Section 439 of the Code
within four weeks from today. On that being done the case shall be considered
-i in its proper perspective uninfluenced by the fact we have disapproved
stipulation of conditions by the High Court. The concerned court shall deal H
10 SUPREME COURT REPORTS [2007) 3 S.C.R.

A with the matter appropriately. It is brought to our notice that the husband of
the deceased has already been released on bail after his surrender. The effect
and/or relevance of that order shall be duly considered by the concerned
court while dealing with the application for bail to be filed within stipulated
time.

B 17. The appeal is allowed to the aforesaid extent.

K.K.T. Appeal Partly allowed.

/