NIRMAL JEET KAURversusTHE STATE OF MADHYA PRADESH AND ANR.

A                      NIRMAL JEET KAUR
                               v.
             THE STATE OF MAD HYA PRADESH AND ANR.

                            SEPTEMBER I, 2004
B
               [ARIJJT PASAYAT AND C.K. THAKKER, JJ.]

        Code ofCriminal Proceedure, 1973-Sections 439 & 438-Application
  in terms of s.439 pursuant to order passed on application under s.438-
C Requirement of applicant being in custody-Held, protection given to
  accused by High Court while application under S. 439 was pending not
  sustainable-Accused to surrender to custody so that his application under
  s.439 can be taken for disposal-Penal Code, 1860-Section 498A & 506
  r/ws 34-Dowry Prohibition Act, 1961-Sections 3 & 4.

D        Code ofCriminal Procedure, 1973-Sections 438 & 439-Distinction
    between orders under S. 438 and S. 439.

         Constitution of India, 1950-Article 141-Rule of stare decisis-
    Relaxation of-In case of decision rendered per incuriam.
E
        Words and Phrases-"Custody"-Meaning of in context of Section
    439 of CrPC.

         Words and Phrases-"Incuria"-Meaning of

F      Alleging physical and mental torture for not satisfying demand
  for dowry, complaint was lodged by Appellant against her husband,
  Respondent No. 2. She alleged commission of offences punishable
  under Sections 498A and 506 read with Section 34 IPC and Sections
  3 and 4 of the Dowry Prohibition Act, 1961 against Respondent No.
G 2 and some of his relatives. Respondent No. 2 filed application for
  protection in terms of Section 438 CrPC before High Court, which
  disposed of the application directing Respondent No. 2 to approach the
  appropriate court for regular bail. Respondent No. 2 applied for
  regular bail before Judicial Magistrate which was rejected. Prayer for
H bail before Sessions Court was also rejected. Respondent No. 2 filed        (

                                     1006
             N.J. KAUR v. STATE OF MADHYA PRADESH                1007

application in terms of Section 439. CrPC before the High Court. Ad- A
interim anticipatory bail was granted.

     In appeal to this Court, protection to Respondent No. 2 under
Section 348 CrPC is assailed by the Appellant. Respondent No. 1,
supported the stand of appellant.
                                                                        B
     Respondent No. 2 submitted that for the purpose of making an
application in terms of Section 439 CrPC, when the same is pursuant
to an order passed on application under Section 438 CrPC, it is not
necessary that the applicant should be in custody.
                                                                        c
     Allowing the appeal, the Court

      HELD : 1.1. Unless a person is in custody, an application for bail
under Section 439 CrPC would not be maintainable•. He who is under
the control of the court or is in the physical hold to an officer with D
coercive power is in custody for the purpose of Section 439. The word
is of elastic semantics but its core meaning is that the law has taken
control of the person. Terminological dubieties viz. the police has taken
a man into informal custody but not arrested him, has detained him
for interrogation but not taken him into formal custody are unfair E
evasions of the straightforwardness of the law. [1014-C; 1014-E-G)

     1.2. Since the expression "custody" though used in various
provisions of CrPC, including Section 439, has not been defined in the
CrPC, it has to be understood in the setting in which it is used and the F
provisions contained in Section 437 which relates to jurisdiction of the
Magistrate to release an accused on bail under certain circumstances
which can be characterized as "in custody" in a generic sense. The
expression "custody" as used in Section 439, must be taken to be a
compendious expression referring to the events on the happening of
which Magistrate can entertain a bail petition of an accused. Section G
437 envisages, inter alia, that the Magistrate may release an accused
on bail, if such accused appears before the Magistrate. There cannot
be any doubt that such appearance before the Magistrate must be
physical appearance and consequential surrender to the jurisdiction of
the Court of the Magistrate. (1014-G-H; 1015-A-BJ                        H
    1008                  SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A       Niranjan Singh and Anr. v. Prabhakar Rajaram Kharote and Ors.,
    AIR (1980) SC 785, relied on.

           Black's Law Dictionary by Henry Campbell Black (Sixth Edition),
    referred to.
B
        2.1. "lncuria" literally means "carelessness". In practice per
  incuriam is taken to mean per ignoratium. English Courts have
  developed this principle in relaxation of the rule of stare decisis. The
  "quotable in law" is avoided and ignored if it is rendered, "in
C ignoratium of a statute or other binding authority". Same has been
  accepted, approved and adopted by this Court while interpreting
  Article 141 of the Constitution which embodies the doctrine of precedents
  as a matter of law. To perpetuate an error is no heroism. To rectify
  it is the compulsion of the judicial conscience. [1016-C-E)

D        State through S.P., New Delhi v. Ratan Lal Arora, [2004) 4 SCC 590
    and State of U.P. and Another v. Synthetics and Chemicals Ltd. and
    Another, [1991 I 4 sec 139, relied on.

           Young v. Bristol Aeroplane Co. Ltd., (1944) 2 All E.R. 293, referred
E to.
         2.2. The view regarding extension of time to "move" the higher
    Court as culled out from the decision in K.L. Verma shall have to be
    treated as having been rendered per incuriam, as no reference was
F   made to the prescription in Section 439 requiring the accused to be in
    custody. [1016-A-B)

         K.L. Verma v. State and Another, (1996) 7 SCALE 20, held per
    incuriam.

G       Salauddin Abdulsamad Shaikh v. State of Maharashtra, AIR (1996)
    SC 1042, referred to.

         3. Sections 438 and 439 operate in different fields. The distinction
    between an order in terms of Section 438 and that in terms of Section
H   439 is that the latter is passed after arrest whereas the former is passed
      N.J. KAUR v. STATE OF MADHYA PRADESH [PASAYAT, J.]          1009

in anticipation of arrest and become effective at the very moment of A
arrest. 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 B
and redundant. If the protective umbrella of Section 438 is
extended, 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 C
manner. (1011-F; 1012-D; 1016-F-H; 1017-A)

      Bal Chand Jain v. State ofM.P., (1976) 4 SCC 572; Gur Baksh Singh
v. State of Punjab, [1980) 2 SCC 565 and Salauddin Abdulsamad Shaikh
v. State of Maharashtra, AIR (1996) SC 1042, relied on.
                                                                          D
     4. In the instant case, the protection given to Respondent No. 2
by the High Court while the application under Section 439 of the Code
is pending is clearly unsustainable. Respondent No. 2 would surrender
to custody as required in law so that his application under Section 439
of the Code can be taken for disposal. (1017-A-B)                       E

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
978 of 2004.

     From the Judgment and Order dated 16.6.2003 of the Madhya F
Pradesh High Court in M. (Crl.) P. No. 2734 of 2003.

     B.S. Rajesh Agrajit, Y.K. Prasad, Ranjit Kumar, S.P. Sharma and
Varinder Kumar Sharma for the Appellant.

    R.P. Gupta, Shekhar Kumar, Vasudev Sharma, Ms. Kamakshi, G
S. Mehlwal and P.D. Sharma for the Respondents.

     The Judgment of the Court was delivered by

     ARIJIT PASAYAT, J.: Leave granted.                                   H
    1010                    SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A        Protection to the respondent no. 2 Dr. Harminder Singh Bhawara
    under Section 438 of the Code of Criminal Procedure 1973 (in short the
    'Code') is assailed by the appellant.

           A brief reference to the factual aspects would suffice.

B
        Appellant and respondent no. 2 entered into a wedlock on 11.5.1997.
  Alleging that she has been subjected to physical and mental torture for not
  satisfying the demand for dowry, a complaint was lodged at Women Police
  Station, Jabalpur (Madhya Pradesh) on 24.2.2003 by the appellant. She
C alleged commission of offences punishable under Sections 498A and 506
  read with Section 34 of the Indian Penal Code 1860 (for short the '!PC')
  and Sections 3 and 4 of the Dowry Prohibition Act, 1961 (in short the
  'Dowry Act') against respondent no. 2 and some of his relatives. On
  29.4.2003 respondent no. 2 filed an application for protection in terms of
  Section 438 of the Code before the High Court of Madhya Pradesh,
D Jabalpur Bench, which was registered as Misc. Crl. Case No. 2890/2003.
  By order dated 15.5.2003 the High Court disposed of the application to
  the following directions:

              "(i) That the petitioner shall make himselfavailable to the police
E                  for investigation in connection with the above offences as
                   and when required in this behalf;

              (ii)   That the petitioner shall not, directly or indirectly, tamper
                     with the prosecution evideni;e.

F             (iii) The petitioner may approach the appropriate court within the
                     period of four weeks for regular bail."

       It appears that respondent no. 2 applied for regular bail before the
  Judicial Magistrate, First Class, Jabalpur, which was rejected. On 5.6.2003
G prayer for bail was made before the Sessions Court, Jabalpur, but that also
  was rejected. On 7 .6.2003 respondent no. 2 filed an application in terms
  of Section 439 of the Code before the High Court. On 12.6.2003 the matter
  was listed before the vacation Judge. The matter was adjourned to
  16.6.2003 when the impugned order was passed. The same reads as
H follows:
      N.J. KAUR v. STATE OF MADHYA PRADESH (PASAYAT,J.)             1011

        "This Court on 15.5.2003 in M. Cr. C.No. 2890/2003 allowed the A
        application for bail for a period of four weeks. Looking to the
        nature of the case, the application of ad-interim anticipatory bail
        is hereby allowed on the condition of furnishing a personal bond
        ofRs.20,000/- with one surety of the like amount to the satisfaction
        of the station Officer In-charge concerned."
                                                                            B
      According to the appellant M. Cr. C no. 3697/2003 which was filed
in terms of Section 439 of the Code is still pending. The case diary was
called for and in M.(Crl.) P. No. 2734/2003 the order as quoted above has
been passed.
                                                                            c
      According to the learned counsel for the appellant the impugned order
is clearly at variance with the earlier order dated 15.5.2003. By the said
order the application in terms of Section 438 of the Code was disposed of
and four weeks time was granted to respondent no.2 for making application
in terms of Section 439 of the Code. The period was over by the time the D
High Court passed the subsequent order. It is a blanket order extending the
ad-interim arrangement indicated in the earlier order. Since the period
indicated in the earlier order was over and the respondent no.2 is not in
custody in terms of Section 439 of the Code, the order is· clearly not
maintainable. Learned counsel for the State of Madhya Pradesh supported E
the stand of the appellant.

      Per contra, learned counsel for the 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 F
Section 439 of the Code, when the same is pursuant to an order passed on
application under Section 438 of the Code, it is not necessary that the
applicant should be in custody.

    Sections 438 and 439 operate in different fields. Section 439 of the G
Code reads as follows:

        "439. {I) A 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 H
                                                                     '
    1012                  SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.'

A           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
B           any person on bail be set aside or modified."
                                                  (underlined for emphasis}

        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
C custody. Section 438 of the Code deals with "Direction for grant of bail
  to person apprehending arrest". In Bal Chand Jain v. State ofMP., [1976]
  4 sec 572 it was observed that the expression "anticipatory bail" is really
  a misnomer because what Section 438 contemplates is not an anticipator
  bail, but merely an order directing the release of an accused on bail on the
  event of his arrest. It is, therefore, manifest that there is no question of
D bail unless a person is arrested in connection with a non-bailable offence
  by the police. The distinction between an order in terms of Section 438
  and that in terms of Section 439 is that the latter is passed after arrest
  whereas former is passed in anticipation of arrest and become effective at
  the very moment ofarrest. (See Gur Baksh Sinfih v. State ofPunjab, [1980]
E 2 sec 565).
         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-
F            bailable 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
G            procedure to follow because it must be realised that when the
             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 ir.formed about the nature of evidence against
             the alleged offender. It is, therefore, necessary that such
                                                                                      (
H            anticipatory bail orders should be of a limited duration only and
      N.J. KAUR v. STATE OF MADHYA PRADESH [PASAYAT, J.]              1013

        ordinarily on the expiry of that duration or extended duration the A
        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".
                                                       (Emphasis supplied) B

    In KL. Verma 's case (supra) 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
        that the regular court, which is to try the offender, is sought to C
        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 D
        evidence 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 of limited duration as the regular
        court cannot be bypassed. The limited duration must be determined E
        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 or the other the court may allow the accused to remain
        on anticipatory bail. To put it differently, anticipatory bail may F
        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 court, if they
        so desire."
                                                      (Emphasis supplied) G

    . The reference to this Court's observation as quoted above was to
Salauddin 's case (supra).

      The grey area according to us is the following part of the judgment
in K.L. Verma 's case (supra) "or even a few days thereafter to enable the H
    1014                  SUPREME COURT REPORTS [2004) SUPP. 3 S.C.R.

A accused persons to move the Higher Court, if they so desire".

          Obviously, 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
B   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 desire. The
    statutory requirement of Section 439 of the Code cannot be said to have
    been rendered totally inoperative by the said observation.

c         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
    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
D   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.

          The crucial question is when a person is in custody, within the
    meaning of Section 439 Criminal Procedure Code? When he is in duress
E   either because he is held by the investigating agency or other police or
    allied authority or is under the control of the court having been remanded
    by judicial order, or having offered himself to the court's jurisdiction and
    submitted to its orders by physical presence. No lexical dexterity nor
    precedential profusion is needed to come to the realistic conclusion that
F   he who is under the control of the court or is in the physical hold to an
    officer with coercive power is in custody for the purpose of Section 439.
    The word is of elastic semantics but its core meaning is that the law has
    taken control of the person. The equivocatory quibblings and hide-and-
    seek niceties sometimes heard in court that the police have taken a man
    into informal custody but not arrested him, have detained him for
G   interrogation but not taken him into formal custody and other like
    terminological dubieties are unfair evasions of the straightforwardness of
    the law.

           Since the expression "custody" though used in various provisions of
H the Code, including Section 439, has not been defined in the Code, it has
           N.J. KAUR v. STATE OF MADHYA PRADESH [PASAYAT, J.]            1015

    to be understood in setting in which it is used and the provisions contained A
    in Section 437 which relates to jurisdiction of the Magistrate to release an
    accused on bail under certain circumstances which can be characterized as
    "in custody" in a generic sense. The expression "custody" as used in
    Section 439, must be taken to be a compendious expression referring to
    the events on the happening of which Magistrate can entertain a bail B
    petition of an accused. Section 437 envisages, inter alia, that the
    Magistrate may release an accused on bail, if such accused appears before
    the Magistrate. There cannot be any doubt that such appearance before the
    Magistrate must be physical appearance and the consequential surrender
    to the jurisdiction of the Court of the Magistrate.
                                                                                 c
         In Black's Law Dictionary by Henry Campbell Black, M.A. (Sixth
    Edn.), the expression "custody" has been explained in the following
    manner:

            " ..... The term is very elastic and may mean actual imprisonment D
            or physical detention .... within statute requiring that petitioner be
            'in custody' to be entitled to federal habeas corpus relief does not
            necessarily mean actual physical detention in jail or prison but
            rather is synonymous with restraint of liberty .... Accordingly,
            persons on probation or parole or released on bail or on own E
            recognizance have been held to be 'in custody' for purposes of
            habeas corpus proceeding."

         It is to be noted that in KL. Verma 's case (supra) the Court only
    indicated that time may be extended to "move" the higher court. In Black's   F
    Law Dictionary the said expression has been explained as follows:

             "Move: to make an application to a Court for a rule or order, or
             to take action in any matter. The term comprehends all things
             necessary to be done by a litigant .to obtain an order of the Court
             directing the relief sought."                                       G

         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 H
    1016                 SUPREME COURT REPORTS (2004] SUPP. 3 S.C.R.

A 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
B 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
C at par, if not, on a better footing. The provisions of Section 439 do not
   appear to have been taken note of.

          "Incuria" literally means "carelessness". In practice per incuriam is
    taken to mean per ignoratium. English Courts have developed this principle
D   in relaxation of the rule of stare decisis. The "quotable in law", as held
    in Young v. Bristol Aeroplane Co. Ltd., [1944] 2 All E.R. 293, is avoided
    and ignored if it is rendered, "in ignoratium of a statute or other binding
    authority". Same has been accepted, approved and adopted by this Court
    while interpreting Article 141 of the Constitution of India, 1950 (in short
E   the 'Constitution') which embodies the doctrine of precedents as a matter
    of law. The above position was highlighted in State of U.P. and Another
    v. Synthetics and Chemicals Ltd. and Another, [1991] 4 SCC 139. To
    perpetuate an error is no heroism. To rectify it is the compulsion of the
    judicial conscience.

F         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
G   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
H   bypassing of what is mandated in Section 439 regarding custody. In other
         N.J. KAUR v. STATE OF MADHYA PRADESH [PASAYAT, J.]            1017

words, till the applicant avails remedies upto higher Courts, the requirements A
of Section 439 become dead letter. No part of a statute can be rendered
redundant in that manner.

      In the afqresaid background, the protection given to the respondent
no. 2 by the High Court while the application under Section 439 of the B
Code is pending is clearly unsustainable. Respondent no. 2 would surrender
to custody as required in law so that his application under Section 439 of
the Code can be taken for disposal. We are very sure that the High Court
will take up the matter for disposal in accordance with law immediately
after the respondent no. 2 is in custody as required under Section 439 of C
the Code. We make it clear that we are not expressing any opinion on the
merits of the matter.

     The appeal is allowed to the extent indicated.

B.B.B.                                                     Appeal allowed. D