Holding

Section 438 CrPC is inapplicable in Uttar Pradesh and a High Court cannot order release on personal bond in the circumstances described.

Summary

The appellant, married to the first respondent, alleged dowry harassment and a FIR was lodged under sections 498A, 323, 504, 506 IPC and sections 3 and 4 of the Dowry Prohibition Act. The respondents filed a writ petition under Article 226 seeking quash of the FIR and a stay of arrest. The Allahabad High Court refused a stay but directed that if the respondents appeared before the lower courts and applied for bail, the application be decided expeditiously and, failing that, they be released on a personal bond of Rs.30,000 each. The Supreme Court examined whether Section 438 of the Criminal Procedure Code (anticipatory bail) could be invoked in Uttar Pradesh and whether the High Court could order release on personal bond without a bail order. It held that Section 438 has no application in Uttar Pradesh and, even otherwise, the High Court could not grant such protection after surrender and rejection of bail. Since the respondents were later granted bail by a competent court, the Supreme Court did not interfere but clarified the correct legal parameters.

Issues considered

Whether Section 438 of the Criminal Procedure Code is applicable in the State of Uttar Pradesh for granting anticipatory bail.
Whether a High Court can direct release of accused on personal bond in lieu of bail when the accused is in custody.
Whether the High Court's order contravenes established Supreme Court precedents on anticipatory bail.

Legislation cited

Code of Criminal Procedure, 1973s. 438, s. 439
Dowry Prohibition Act, 1961s. 3, s. 4
Indian Penal Code, 1860s. 323, s. 498A, s. 504, s. 506

Subjects

anticipatory bailSection 438personal bondbailUttar Pradeshdowry harassmentFIR quashstay of arrestCriminal Procedure Code

Judgment

[2008] 3 S.C.R. 796
r ,.
A REKHA PATEL L

v.
PANKAJ VERMA AND ORS.
(Criminal Appeal No. 428 of 2008)
MARCH 3, 2008
B
[DR. ARIJIT PASAYAT AND J.M. PANCHAL, JJ.] ,..
"}

Code of Criminal Procedure, 1973 - s. 438 - Writ petition
s~eking quashing of FIR and stay of arrest - High Court
c ordering grant of anticipatory bail by appropriate court and if
bail was refused direction to release the accused on personal
·bond - On appeal, held: Anticipatory bail cold not be granted
as s. 438 has no application to the State concerned (Uttar
Pradesh) - Even otherwise the protection of release on
personal bond not permissible - However, since the accused
D ~
was subsequently granted bail by competent court, no I
interference called for.
Respondents filed writ petition before· High Court
· seeking quashing of FIR registered against them and for
E stay of arrest pending disposal of the writ petition. High
Court refused to grant stay of arrest but ordered that if
the petitioners-respondents put their appearance or were
produced before the courts below and made application
for release on bail, the same should be disposed of, and
F if their case was not found fit for release on bail, they
would be released on personal bond. Hence the present ....
appeal.
Disposing of the appeal, the Court
G HEl.D: 1. Presently Section 438 Cr.P.C. has no
application to the State of Uttar Pradesh. Even otherwise,
after surrender of accused and rejection of his bail
application, the protection of the nature granted by the ~•
High Court cannot be given. [Para 7] [798-G; 799-A]
H 796
REKHA PATEL v. PANKAJ VERMA AND ORS. 797
[DR. ARIJIT PASAYAT, J.]
.., \
.. Adri Dharan Das vs. State of West Bengal 2005 (4) SCC A
303 ·- relied on.
2. However, in view of the fact that pursuant to the
direction given by the High Court, the respondents had
moved for bail and have been granted bail, this court '
declines to interfere in the appeal; but have considered it B
" "· ~
necessary to indicate the correct parameters so that the
'•
mistake committed by the High Court is not repeated.
I [Paras 8 and 9] [803-C, D]
l
" CRIM!NALAPPELLATEJURISDICTION: CriminalAppeal c
No. 428 of 2008.
From the Judgment and Order dated 7.11.2006 of the High
Court of Judicature at Allahabad in Crl. Misc. W.P. No. 13167/
2006.
~ D
--r
' Goodwill lndeevar and Z.K. Faizan for the Appellant.
Shakil Ahmed Syed, Manoj K. Dwivedi and Anuvrat
Sharma for the Respondents.
The Judgment of the Court was delivered by
E
DR. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is to the order passed by the
r·":t Division Bench of the Allahabad High Court passed on a peti:-ion
under Article 226 of the Constitution of India, 1950 (for snvrt
'The Constitution'). . Ft
3. The appellant was married to respondent No.1 on
12.11.2005. Alleging that she was being harassed for non-
fulfilment of the demand of dowry, a complaint was filed at Thana,
Jawan Police Station, District Aligarh. On the basis of G
appellant's complaint Crime No.277 of 2006 was registered
for alleged commission of offences punishable under Sections
~· 498A, 323, 504 and 506 of the Indian penal Code, 1860 (for
short 'The IPC') and Sections 3/4 of the Dowry Prohibition Act,
1961 (for short 'The Dowry Act'). Respondent Nos.1 to 6 filed a
H
798" SUPREME COURT REPORTS
. [2008] 3 S.C.R.
f,
A writ petition for quashing the F.l.R. and for stay of arrest pending ...
the disposal of the writ petition. The writ petition was filed on
1.11.2006. By the impugned order dated 7.11.2006 the High
Court declined to accept the prayer for stay of arrest of the
respondents but nevertheless passed the following order:
B "Considering the facts and circumstances of the case, in
the event the petitioners put in their appearance or are
produced before the courts below and make application 7
for their release on bail in case crime No. 277 of 2006
under Sections 498-A, 323, 504 and 506 l.P.C., Police
c Station Jawan, District Aligarh, the same shall be heard
and disposed of expeditiously in accordance with law and
in case of petitioner Nos.1 to 5, if the learned Magistrate
does not find fit case to release them on bail, they shall be
released on personal bond of Rs.30,000/- each and they
D shall remain on the same personal bonds till the final
(
disposal of their bail application, if any, by the Court of 't
Sessions and that too within a week thereafter."
4. L,earned counsel for the appellant submitted that virtually
there has been exercise of power under Section 438 of the
E Criminal Procedure Code, 1973 (in short 'The Cr.P.C.'). It is
pointed out that in the State of U.P., Section 438 Cr.P.C. has no
application.
5. The learned counsel for respondent Nos.7 to 9 submitted f-

F that the direction given by the High Court is clearly contrary to
the decision of this Court in Adri Dharan Das Vs. State of West
Bengal (2005 (4) SCC 303).
6. There is no appearance on behalf of respondent Nos.1
to 6 in spite of service of notice.
G
7. As rightly contended by the learned counsel for the
appellant, presently Section 438 Cr.P..C. has no application to
the State of U.P. Even otherwise, as noted in Adri Dharan Das's 11
case (supra), after surrender of accused and rejection of his
bail application, the protection of the nature granted by the High
H
REKHA PATEL v. PANKAJ VERMA AND ORS. 799
[DR. ARIJIT PASAYAT, J.]
,\
~ Court cannot be given. In this context paragraphs 7, 8, 9 10, 11, A
12 and 13 of Adri Dharan Das's case (supra) are relevant. They
read as follows:
"7. 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 B
-. ~
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 c
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, more
particularly the custody of Police. The distinction beM(een
an ordinary order of bail and an order under Section 438 D
-~
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(2) SCC 565). E
Section 46(1) of 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
-"'t actually touch or confine the body of the person to be
arrested, unless there be a submission to the custody by F
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( 1) of the Code or any
confinement. The apex Court in Balachand Jain v. State
of Madhya Pradesh (AIR 1977 SC 366) has described
G
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
H
800 SUPREME COURT REPORTS [2008] 3 S.C.R.

A arrested, and therefore, it is only on an arrest being effected
, ~

the order becomes operative. The power exercisable I'

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
B 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 important nature it is entrusted only to the higher 7
•
echelons of judicial forums, i.e. the Court of Session or
c 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 immediate'ly on bail
D
without being sent to jail.
~
't
8. Sections 438 and 439 operate in different fields. Section
439 of the Code reads as follows:
"439. (1)A High Court or Court of Session may direct-
E
(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 .,.,
F 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."
G
(underlined for emphasis)
9. 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. Section 438 of the Code
+---·
H deals with "Direction for grant of bail to person
REKHA PATEL v. PANKAJ VERMA AND ORS. 801

.'
...
[DR. ARIJIT PASAYAT, J.]

apprehending arrest"
10. In Sa/auddin Abdulsamad Shaikh v. State of
A

Maharashtra (AIR 1996 SC 1042) it was observed as
follows:
"Anticipatory bail is granted, in anticipation of arrest in B
non-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 c
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 is granting anticipatory bail, it
is granted at c;i stage when the investigation is incomplete
and, therefore, it is not informed about the nature of
D
evidence against the alleged offender. It is, therefore.
' -1·
necessai:y that such antici~atoi:y bail orders should be of
a limited duration only and ordinarily on the exgii:y of that
duration or extended duration the court granting anticigatoi:y
bail should leave it to the regular court to deal with the
matter on an appreciation of evidence placed before it E
after the investigation has made progress or the charge-
sheet is submitted".

Y't (Emphasis supplied)
11. In K.L. Verma v. State and Anr. (1996 (7) SCALE 20) F
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 tcy the
G
offender, is sought to be bypassed. It was, ther~fpre,
pointed out that it was necessary that such anticipatory
to-...--.l 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
H
802 SUPREME COURT REPORTS [2008] 3 S.C.R.

! ..,,
A 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. 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 ·
B duration as the regular court 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
T
.r

time to move the regular court for bail and to give the
regular court sufficient time to determine the bail
c application. In other words, till the bail a1212lication is
dis12osed of one way or the other the court may allow the
accused to remain on antici12ato[Y. bail. To 12ut it differently,
antici12ato[Y. bail may be granted for a duration which may
extend to the date on which the bail a1212lication is dis12osed
of or even a few days thereafter to enable the accused
D
12ersons to move the higher court, if they so desire." ~
t
(Emphasis supplied)
12. In Nirmal Jeet Kaur v. State of M.P. and Another(2004
(7) SCC 558) and Sunita Devi v. State of Bihar and Anr.
E Criminal Appeal arising out of SLP (Crl.) No. 4601 of
2003 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 Higher Court,
F 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 Sa/auddin's case (supra). In the
G 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 1-'·
cannot be said to have been rendered totally inoperative
H by the said observation.
REKHA PATEL v. PANKAJ VERMA AND ORS. 803
[DR. ARIJIT PASAYAT, J.]

13. In view of the clear l~nguage of Section 439 and in A
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 uncfer Section 439 of
the Code would not be maintainable. The question when
8
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."
8. It is, however, submitted by the learned counsel for the
State that pursuant to the direction given by the High Court, the C
respondents had moved for bail and have been granted bail by
the learned Sessions Judge concerned.
9. In view of the aforesaid situation, we decline to interfere
in the appeal; but have considered it necessary to indicate the
correct parameters so that the mistake committed by the High D
Court is not repeated.
10. The appeal is disposed of, subject to the aforesaid
observations.
K.K.T. Appeal disposed of. ·E