Holding

Anticipatory bail under s.438 CrPC may be granted only in exceptional cases where the applicant shows a reasonable ‘reason to believe’ of arrest; it cannot be a blanket order and must be of limited duration, leading to the setting aside of the High Court’s order.

Summary

The informant appealed the Patna High Court’s order granting anticipatory bail to three respondents under s.438 of the CrPC. The Supreme Court held that the High Court erred in granting a blanket anticipatory bail without the applicant showing a specific ‘reason to believe’ of arrest based on reasonable grounds, and in incorrectly stating that the accused were not named in the FIR. The Court clarified that anticipatory bail is an extraordinary remedy, limited in duration, and cannot replace the regular bail process under s.439. It also emphasized that parties cannot access the case diary during bail proceedings and reiterated the statutory duty to supply police documents under ss.207‑208. Consequently, the Court set aside the High Court order, directing the respondents to surrender within four weeks and seek regular bail. The appeal was allowed.

Issues considered

Whether the High Court correctly applied the parameters for granting anticipatory bail under s.438 CrPC.
Whether the accused were named in the FIR, a prerequisite for anticipatory bail.
Whether a blanket order of anticipatory bail can be issued without specific factual basis.
Whether the applicant must demonstrate a ‘reason to believe’ of arrest on reasonable grounds.
Whether anticipatory bail can be granted before charge‑sheet filing and its permissible duration.
Whether parties may refer to or access the case diary during bail applications.
Whether sections 207 and 208 of the CrPC require the supply of police documents to the accused.

Legislation cited

Code of Criminal Procedure, 1973s. 207, s. 208, s. 438, s. 439, s. 46(1)

Subjects

anticipatory bailsection 438section 439bailCriminal Procedure Codereason to believeblanket ordercase diarypolice reportsright to liberty

Judgment

/
y-
NARESH Kl JMAR YADAV A
v.
RAVINDRA KUMAR AND ORS.

OCTOBER 23, 2007
B
[DR ARIJIT PASAYAT AND LOKESHWAR SINGH
f' PANTA,JJ.]
.7

Code ofCriminal Procedure, 1973:
c
s.438-Protection under-Held: Is for limited duration during
which regular Court has to be movedfor bail-Applicant has to show
that he has 'reason to believe' that he may be arrested in non-bailable
offence-Beliefhas to be founded on reasonable grounds only ifthere
is something tangible to show that his apprehension that he may be D
arrested is genuine-Direction that applicant be released on bail
·~
"whenever arrested for whichever offence whatsoever" should not be
issued as it would serve as blanket to protect any and every kind of
allegedly unlawful activity-On facts, High Court wrongly noted that
accused persons were not named in FIR and granted protection under E
s.438-Hence, order of High Court not sustainable-Bail-
Anticipatory bail.

ss.438 and 439-Distinction between-Discussed.

ss. 207 and 208-0bject of-Held: Is to enable accused to defend
F
--! 'r himselfproperly.

Case diary-Informant and accused, at hearing of bail
applications referring to portions of case diary in support of their
stand-Held: Legally they could not have access to these official
records-Hence, courts to take serious note of the same. G
Words and phrases:
""""
'reason to believe '-Connotation of-Jn the context of s. 438 of

615 H
616 SUPREME COURT REPORTS (2007] 11 S.C.R.

A Code ofCriminal Procedure, 1973.
The present appeal is filed by the informant challenging the
order of High Court allowing the prayer of respondent nos. 1, 2 and
3 for seeking protection in terms of s.438 Cr.P .C. on the ground that
i while allowing so, the High Court had not kept in view the parameter
B for granting such protection; that the High Court had preempted the
framing of charges and also had wrongly noted that accused persons A
were not named in the FIR. ~

Disposing of the appeal, the Court
c ;15 HELD: 1.1. The High Court has wrongly noted that the accused
·persons were not named in the FIR; in fact they were specifically
'named. [Para 5] (620-E]
~1~\· - . -
• 'Ji\ "\' 1.2. Thefacilitywhich s. 438 Cr.P.C. gives is generally referred
1
D \t,? ~s;• anticipatory _bail'. This expression which was used by the Law
C~mmission in its 41st Report is neither used in the section nor in
~.h \ • •\, , '
.,its marginal
l\j \;!'\\., ' .
note. But. .
the expression 'anticipatory bail' is a
convenient mode of indication that it is possible to apply for bail in
IHI I\ 11~\\
°'anti~ipation of arrest. Any order of bail can be effective only from
1~)\ ·-l · ~<\

E
•.

th\~ ~~tf e of arrest of the accused. 'Bail' is basically release from
restraint, more particularly the custody of Police. The distinction
between an ordinary order of bail and an order under s.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
p ~~}~'ili~<iii'ifanticipation of arrest and is therefore effective at the very
moment of arrest. (Para 6] [620-F, G, H; 621-A]
\ . ·:' Gur·B'alsh Singh V.' State of Punjab, (1980] 2 sec 565, relied
bit~-~.\ ~ ~ . ,( l\\f\ . ' , .
0

''"I J •\\_U "> ")',\\
'Q. WharfOIJ;~S Law Lexicon, referred to.

2.1. The power exercisable under s.438 is somewhat .
extraordinary in character and it is only in exceptional cases where
\it ~ppea'rs th'afthe person may be falsely implicated or where there
are reasonable grounds for holding that a person accused of an
·H offence is not likely to otherwise misuse his liberty then power is to
r
NARESHKUMAR YADAVv. RAVINDRAKUMAR 617
...,.__

be exercised under s.438. The power being of important nature it is A
entrusted only to the higher echelons of judicial forums, i.e. th~
Court of Session or the High Court. It is the power exerdsable in
case of an anticipated accusation of non-bailable offence. The object
which is sought to be achieved by s.438 of the Code is that the
moment a person is arrested, if he has already obtained an order B
r from the Court of Session or High Court, he shall be released
;r· immediately on bail without being sent to jail.
[Para 6] [621-D, E, FJ

Balachand Jain v. State ofMadhya Pradesh, AIR (1977) SC 366,
referred to.
c
2.2. The protection in terms of s.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 s.439 mandating the applicant to be in
custody. Otherwise, the distinction between orders under ss. 438 an~ D
y 439 shall be rendered meaningless and redundant.
[Para 13) [624-D)
Salauddin Abdulsamad Shaikh v. State of Maharashtra, AIR
(1996) SC 1042, relied on. E
K.L. Verma v. State and Anr. (1996) 7 SCALE 20; Nirmal Jeet
Kaurv.State ofMP. andAnr., [2004) 7 SCC 558; Sunita Deviv.State
o/Bihar andAnr., [Criminal Appeal arising out ofSLP (Crl.) No. 4601
of 2003 disposed of on 6.12.2004) and Niranjan Singh and Anr. v~
-J. )' Prabhakar Rajaram Kharote and Ors., AIR (1980) SC 785, referred F
to.

3. S.438 is a procedural provision which is concerned with the
personal liberty of an individual who is entitled to plead innocence,
since he is not on the date of application for exercise of power undeJ
G
s.438 convicted for the offence in respect of which he seeks bail.
The applicant must show that he has 'reason to believe' that he may
"" '
be arrested in a non-bailable offence. Use oHhe expression 'reason
to believe' that he may be arrested, in a non-bailable offence, show~
that the applicant may be arrested must be founded on reasonablJ
H
618 SUPREME COURT REPORTS (2007] 11 S.C.R.

A grounds. Mere "fear" is not 'belier, for which reason it is not
enough for the applicant to show that he has some sort of vague
apprehension that some one is going to make an accusation against
him in pursuance of which he may be arrested. Grounds on which
the belief of the applicant is based that he may be arrested in non-
B ba~lab)e offen_ce mus~ b.e capable of being,examin.ed.
[Para 15] [624-F, G; 625-A]
4. If an application is made to the High Court or the Court of
Session, it is for the Court concerned to decide whether a case has
C been mad.e out for granting the relief sought. The provision,s cannot
be invoked after arrest of the accused. A blanket order should not
be generally passed. It flows from the very language of the section
which requires the applicant to show that he has reason to believe
that he may be arrested. A belief can be said to be founded on
D reasonable grounds only.if there is something tangible to go by on
the basis of which it can be said that the applicant's apprehension
that he may be arrested is genuine.. Normally a direction should not
be issued to the effect that the applicant shall be released on bail
"whenever arrested for whichever offence whatsoever". Such
'blanket order' should not be passed as it would serve as a blanket
E to cover or protect any and every kind of allegedly unlawful activity.
An order under s.438 is a device to secure the individual's liberty,
it is neither a passport to the commission of crimes nor a shield
against any and all kinds of accusations like~y or unlikely. On the
facts of the case, considered in the background oflegal p~sition set
F out above, this does not prima facie appear to be a case where any
order in terms of s.438 can be passed. [Para 15] [625-B, C, D, E]
Adri Dharan Das v. State of West Bengal, [2005] 4 SCC 303,
relied on.
G 5.1. In view of the principles oflaw and the factual scenario
involved, respondent is directed to surrender within a period of four
weeks before the concerned Court and seek regular bail. Thus no
opinion is expressed on the merits of the case. Both the accused
and the informant referred to several portions in the case diary. The
H documents in terms of ss. 207 and 208 are supplied to make the
j.,
NARESHKUMAR YADAV v. RAVINDRAKUMAR 619
'¥"' [PASAYAT,J.]
accused aware of the materials which are sought to be utilized A
against him. The object is to enable the accused to defend hims~lf
properly. The idea behir.d the supply of copies is to put him on notice
of what he has to meet at the trial.
[Paras 17, 18, 21 and 23] (625-F, G; 626-E; 628-B, CJ
B
Noor Khan v. State ofRajasthan, AIR (1964) SC 286 and Shakita
t- Abdul Gafar Khan (Smt.) v. Vasant Raghunath Dhoble andAnr., [2003]
;:r
7 sec 749, relied on.
5.2. It is baft1ing to note that the accused and informant referr(jd
to particular portions of case diary. At the stage the bail applications c
were heard by the High Court, legally they could not have been in a 1

position to have access to the same. The papers which are to ~e
supplied to the accused have been statutorily prescribed. The Courts
should take serious note when the accused or the informant refers
to the case diary to buttress a stand. [Para 24] (628-F, G] D
·y-
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
1462 of 2007.
From the Judgment and final Order dated 10.7.2006 of the High
Court of Judicature at Patna in Cr. Misc. No. 34337 of2005 with Cr. E
Misc. Nos. 35682 & 34139 of 2005.
'
Sunil Kumar, Raj iv Shankar Dvivedi and Ajay Choudhary for the
Appellant.
~ 'r P.S. Mishra and Ranjit Kumar, Amit Pawan, Gopal Singh and F
Manish Kumar for the Respondents.
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is by the informant to the order passed G
-,.., by a learned Single Judge of the Patna High Court disposing of three
petitions filed by respondent nos. 1, 2 and 3. By the said petitions, the
prayer for protection in terms of Section 438 of the Code of Criminal
Procedure, 1973 (in short the Code') was accepted.
j H
620 SUPREME COURT REPORTS (2007] 11 S.C.R.

A 3. Learned counsel for the appellant submitted that while allowing
the protection in tenns of Section 438 of the Code the High Court has
not kept in view the parameters indicated by this Court for granting
such protection. Even otherwise, the High Court has pre-empted the
framing of charges. It is also pointed out that the High Court has
B committed several errors on facts, for example it observed that the
accused persons were not named in the first infonnation report (in short
the 'FIR') though they were specifically named in the FIR.
4. Learned counsel for the respondents on the other hand
submitted that without any material to show that the accused persons
C were involved in any conspiracy to do away with the deceased, false
implications have been made with ma/a fide intent. The deceased was
involved in several cases. It was submitted that the High Court had
taken note of the position that the materials so far as the respondents
are concerned for alleged conspiracy were contained in paragraphs~39,
D 41and42 of the case diary. It is submitted that learned counsel for
the informant before the High Court had also conceded that they
contained the materials relating to the accused persons.
5. As rightly contended by learned counsel for the appellant,
E granting blanket protection under Section 438 of the Code is not
envisaged. There is also substance in the submission oflearned counsel
for the appellant that the High Court has wrongly noted that the accused
persons were not named in the FIR, in fact they were specifically
named.'.

F 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 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
G anticipatio~ ~f-~est. ~~order of ba~l can be effe~tive only from the
~iI].le,~ffilf~s~ qftp~-~9cqsed. W?art9n'~ La~Lexic~n expl~ns 'b~il' >'~
<l$ .'tp .~et fl-~ l.1berty, <!.person arrested or 1mpnsoned, on secunty bemg
talce.n for his'.~ppe~ce. '.thus bail is basically release from res~raint,
more parti~tilal-iy th~;~µstody,of Police.. Th~ distinction between an
H ordinary order of bail and an order under Section 438 of the Code is
I

j
NARESHKUMAR YADAV v. RAVINDRA KUMAR 621
[PASAYAT,J.]
y-.
that whereas the fonner is granted after arrest, and therefore means release A
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] 2 sec 565). Section 46(1) of the
Code, which deals with how arrests are to be made, provides that in I
making an arrest the Police Officer or other person making the same "shall B
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
/T Section 438 of the Code is intended to confer conditional immunity from
the touch as envisaged by Section 46( 1) of the Code or any confinement.
This Court in Balachand .Jain v. State ofMadhya Pradesh, AIR ( 1977) c
,.. SC 366 has described the expression 'anticipatory bail' as 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 D
the order becomes operative. The power exercisable under Section 438
·y 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 E
under Section 438. The power being of important natll!e i!js entrusted
only to the higher echelons ofjudicial forums, i.e. the Court of Session or
the High Court. It is the power exercisable in case of an amicipated
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 F
-I)' arrested, ifhe 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.

·7. Sections 438 and 439 operate in different fields. Section 439 of
the Code reads as follows: G
"439. (I) A High Court or Court of Session may direct -
- ~, ,
(a) that any person accused of an offe~ce arid in custody be
released on bail, and if the offence is of the nature specified in
· ·sub-section (3)ofSection 437, may impose any condition which H
622 SUPREME COURT REPORTS [2007] 11 S.C.R.

A it considers necessary for the purposes mentioned in that sub-
section;
(b) that any condition imposed by the Magistrate when releasing
any person on bail be set aside or modified."
B (underlined for emphasis)
8. It is clear from a bare reading of the provisions that for making A.
an application in terms of Section 439 of the Code a person has to be in 1~
custody. Section 438 of the Code deals with "Direction for grant of bail
c to person 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
D 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
E
Court of Sessions or the High Court 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
F
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 the investigation has made
progress or the charge-sheet is submitted".
G
(Emphasis supplied)
l 0. In K.L. Verma v. State and Anr., (1996) 7 SCALE 20 this
Court observed as follows:
H "This Court further observed that anticipatory bail is granted
I NARESHKUMAR YADAV v. RAVINDRAKUMAR 623
lPASAYAT,J.]
in anticipation of arrest in non-bailable cases, but that does not A
mean 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 B i

regular court to deal with the matter on an appreciation of evidence 1

placed before it after 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 oflimited duration as the regular court c
cannot be bypassed. The limited duration must be determined
having regard to the facts of the case 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 ofone way 0
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 bail application is disposed of or even a few days
thereafter to enable the accused persons to move the higher E
court, if they so desire. "

(Emphasis supplied)i
11. In Nirmal Jeet Kaur v. State ofMP. and Anr., [2004] 7 SCC
558 and Sunita Devi v. State ofBihar and Anr., Criminal Appeal arising F
out of SLP (Crl.) No. 4601 of 2003 disposed of on 6.12.2004 certain
grey areas in the case of KL. 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 Higher Court, if they so desire". It was
held that the requirement of Section 439 of the Code is not wiped out by G
the above observations. Section 439 comes into operation only when~
s
person is "in custody". In KL. Verma case (supra) reference was made
to Salauddin 's case (supra). In the said case there was no such indication
as given in KL. Verma 's case (supra), that a few days can be granted to
the accused to move the higher Court if they so desire. The statutory
H
624 SUPREME COURT REPORTS [2007] 11 S.C.R.

A 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
Kharote and Ors., AIR (1980) SC 785, there cannot be any doubt that
B 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.
C 13. 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 fundamen~ r,~cru.ir~JE..~P!}~ that the
accused should be in custody. As QlJS~fV~d;iµ S,a,la11dqi1J~ ~~e (supra)
D the protection in terms of Seq:io11 ,438 ~s for .~)W,Ute4Auiatio~ g~g which
the regular1Gourt has to be moved for.bail.- Q~vj~11sly, ~:iic~'J?ai!Js bail in
tenns .of Section. 439 of the Coqe, n;iru;i<lating th~ applic~ar~tto -~ .W custody.
,,Otherwise, the di~tinction-betw~en~rder~.~der ~C:'.c.~~9.~s,,438 1 and 439
,-shallbe,renderedmeaningle~s,and~r~<:fun~~t·\·· ii''·'. 1\\ ... 1 ~ 11 ir
E ·. ,;\·; "14'..tr th~ proteCtive t\hi6rei1<i'ofs~ctiSh43S 'is\e~tei:ideli beyond
what was laid down in Salauddin 's case '(Stip}a) thlrdillt would be clear
, 1\Jypassing,ofwhat is mandated in Section 439 regarding custody. In other
words, till the applicant avails remedies upto higher Courts, the
· r~quirem~rit~ of Section 43·9 become dead letter, No·part-ofaistatute can
,F be renoeredt~dundantinthatmahner: \' -" ,/ I ; . ' ' " ~;\; ·.';/ ;.n;, '-1-·~
'; .}rJ ~·., ~ , ~
H. : · l • • ~
• ·• ~-
, •• ; \,.h°
,. ,, , ·:
.. 1 : i f:. i I""* ; ; HJ·:,
, I 1· :

:.. 1~. -S~c~iqp. 4~8, i_s a pro~e.duK~_l_ pr~vjs~pn)-vift~P}~ c1~p.<;:~Ti~d,~fh
, tbe person.aj_ lib_yflY ~fan iq.d_iyic;l}l3lt\V~o isceq~tl~~ j~J?~ea9_,.J~~~~n~e,
. ;Sin9e hS! is,110~ on ~he daty of~p~li,ca!i~n_ f~f 7?'~ff~~e, ~{ B?~~r, \11117r
. G _$ectio11.438 oftµe,~_od~ cqn,vj<;ted fo~ ~r0Jf~~s71 ip.H~~p~c} ~~~hi;~h_he
' - ~eeks b~H·, The. app~icant ,tµll;S( sh9w; tq;it P;e. ,h~1 ;,re.¥.fmJq, p~lJGYi~' Jp~t
he 1rn_ay, Q,~,a_q~s_t~q, ~-~~-~- .n911:~ajl~bl~, off~PSr· l!~e -909~ e~pr~~~~pn _..J
/:
1 !,'re~oµ:t<;>:9eli~ye'..filat pe.µta)_' ]Js,~~~t.e;d;i? a 1,1on-~,~i,l3'-91~?f\~~WYr~Y.~e
c of tll.~;e~pre~~i_qn_,;re~s9n, to.b~lj~ye' .sh.o.'r'~ t~~t,,h~ a~P,\i~1~nf_ !n~Y :pe
tH . ilIT~li~yd-J!lustJ P.~.J<,mJld.~9 on rea~ona~le :W~~n4s. J0<fff ':f~.~~'-'}~~pot
1
f
,

! NARESHKUMAR YADAV v. RAVINDRAKUMAR 625
')-·..., [PASAYAT,J.]
'belief for which reason it is not enough for the applicant to show that A
he has some sort of vague apprehension that some one is going to make
an accusation against him in pursuance of which he may be arrested.
Grounds on which the belief of the applicant is based that he may be
arrested in non-bailable offence must be capable of being examined. If
an application is made to the High Court or the Court of Session, it is B
~
for the Court concerned to decide whether a case has been made out
,'T
for granting the relief sought. The provisions cannot be invoked after arrest
of the accused. A blanket order should not be generally passed. It flows
from the very language of the section which requires the applicant to show
that he has reason to believe that he may be arrested. A belief can be c
said to be founded on reasonable grounds only if there is something
tangible to go by on the basis of which it can be said that the applicant's
apprehension that he may be arrested is genuine. Normally a direction
should not issue to the effect that the applicant shall be released on bail
"whenever arrested for whichever offence whatsoever". Such 'blanket D
order' should not be passed as it would serve as a blanket to cover or
protect any and every kind of allegedly unlawful activity. An order under
Section 438 is a device to secure the individual's liberty, it is neither a
passport to the commission of crimes nor a shield against any and all kinds
of accusations likely or unlikely. On the facts of the case, considered in E
the background of legal position set out above, this does not prima facie
appear to be a case where any order in terms of Section 438 of the Code
can be passed.
16. These aspects have been highlighted inAdri Dharan Das v.
-{ ~ State of West Bengal, [2005] 4 SCC 303. F

17. In view of the principles oflaw as set out above and the factual
scenario involved, we direct that within a period of four weeks from today
the respondents shall surrender before the concerned Court and shall seek
regular bail.
G
18. We make it clear that we are not expressing any opinion on the
)...-"
merits of the case. When the bail application is moved in terms of Section
439 of the Code before the concerned Court the same shall be
considered in its proper perspective in accordance with law. If an
application for bail is moved, the concerned Court would do well to H
\

A
626 SUPREME COURT REPORTS [2007] 11 S.C.R.

A dispose it of on the day it is filed. Learned counsel appearing for the State
has undertaken that all relevant records shall be produced before the Court
dealing with the bail application and no adjournment shall be asked for
on the ground of non-availability of records if the accused-respondents
intimate the date on which they purpose to surrender three days in
B advance.
19. It is to be noted that apprehension of the appellant that framing A
of charge pre-empted is based on the following observations of the High ',
Court:
c "If upon the completion of the investigation charge sheet is
submitted against the petitioners on material other than noticed
presently, the petitioners shall have their remedies in accordance
with law."
20. So far as filing of the charge sheet and framing of charge
D concerned, needless to say that charge sheet shall be submitted on the
basis of materials collected during investigation and while considering the
charge sheet filed the concerned Court shall take note of the relevant
factors and decide as to whether on the materials on record framing of
charge against the accused persons is warranted. We make it clear that
E we have expressed no opinion in that regard.
21. Before we part with the case, we feel it necessary to indicate
that both the accused and the informant referred to several portions in
the case diary.
F 22. Sections 207 and 208 of the Code deal with documents which
are commonly known as police papers, which are to be supplied to the
accused. The said sections read as follows:
"Section 207- Supply to the accused of copy ofpolice report
and other docum"ents: In any case where the proceeding has been
G
instituted on a police report, the Magistrate shall without delay
..)
furnish to the accused, free of cost, a copy of each of the /
following:-
(i) the police report;
H
I NARESHKUMAR YADAVv. RA VINDRAKUMAR 627
[PASAYAT,J.]
(ii) the first information report recorded under Section 154; A
(iii) the statements recorded under sub-section (3) of Section
161 of ali persons whom the prosecution proposes to examine
as its witnesses, excluding therefrom any part in regard to
which a request for such exclusion has been made by the police
officer under sub-section (6) of Section 173; B
)'-
(iv) the confessions and statements, if any, recorded under
_.,.T
Section 164;
(v) any other document or relevant extract thereof forwarded
to the Magistrate with the police report under sub-section (5) c
of Section 173:
Provided that the Magistrate may, after perusing any such part
of a statement as is referred to in clause (iii) and considering the
reasons given by the police officer for the request, direct that a
copy of that part of the statement or of such portion thereof as D
·y
the Magistrate thinks proper, shall be furnished to the accused:
Provided further that if the Magistrate is satisfied that any
document referred to in clause (v) is voluminous, he shall, instead
of furnishing the accused with a copy thereof, direct that he will E
only be allowed to inspect it either personally or through pleader
in Court.
Section 208- Supply of copies of statements and documents
to accused in other cases triable by Court ofSession- Where,
--<~ in a case instituted otherwise than on a police report, it appears F
to the Magistrate issuing process under Section 204 that the
offence is triable exclusively by the Court of Session, the Magistrate
shall without delay furnish to the accused, free of cost, a copy of
each of the following:-
G
(i) the statements recorded under Section 200 or Section 202,
~,
or all persons examined by the Magistrate;
(ii) the statements and confessions, if any, recorded under
Section 161 or Section 164;
H
628 SUPREME COURT REPORTS [2007] 11 S.C.R.

A (iii) any documents produced before the Magistrate on which
the prosecution proposes to rely;
Provided that if the Magistrate is satisfied that any such
document is voluminous, he shall, instead of furnishing the accused
with a copy thereof, direct that he will only be allowed to inspect
B
it either personally or through pleader in Court."
23. The documents in terms of Sections 207 and 208 are supplied 'h
to make the accused aware of the materials which are sought to be utilized
against him. The object is to enable the accused to defend himself properly.
C The idea behind the supply of copies is to put him on notice of what he
has to meet at the trial. The effect of non-supply of copies has been
considered by this Court in Noor Khan v. State of Rajasthan, AIR
(1964) SC 286 and Shakila Abdul Gafar Khan (Smt.) v. Vasant
Raghunath Dhoble and Anr., [2003] 7 SCC 749. It was held that non-
D supply is not necessarily prejudicial to the accused. The Court has to give
a definite finding about the prejudice or otherwise. Even the supervision
notes cannot be utilized by the prosecution as a piece of material or
evidence against the accused. If any reference is made before any court
to the supervision notes, as has noted above they are not to be taken
E note of by the concerned court. As many instances have come to light
when the parties, as in the present case, make reference to the supervision
notes, the inevitable conclusion is that they have unauthorized access to
the official records.
24. Further, it is baffling to note that t_he accused and informant
F referred to particular positions of case diary. At the stage the bail ., ~
applications were heard by the High Court, legally they could riot have
been in a position to have access to the same. The papers which are to
be supplied to the accused have been statutorily prescribed. The Courts
should take serious note when the accused or the informant refers to the
G case diary to buttress a stand.
...)
25. The appeal is disposed of accordingly. /
D.G. Appeal disposed of.