JUDGMENT
L.C. Bhadoo, Actg. C.J.
1. One of us. Learned Brother (Justice Sunil Kumar Sinha), has referred the following question to be adjudicated by a Larger Bench that is how the matter has been placed before us:
Whether a petition filed Under Section 439, Cr. P.C. for grant of regular bail, during the period of mandated custody of the protective umbrella shall be maintainable even after expiration of the period of mandated custody during the pendency of such application without the applicants being surrendered to the custody? or such petitions would not be maintainable after expiration of the period of protective umbrella opened in favour of the applicants and that shall be dismissed as not maintainable after expiration of the said period ?
2. In order to appreciate point of reference made by Brother Justice Sinha it is necessary to narrate brief facts leading to making of this reference.
3. Applicants namely Pramod Kumar Mehta and Ankit Mehta were apprehending their arrest in Crime No. 330/2006. regis: tered at Police Station Jamul, District Durg, for offence punishable under Section 379 read with Section 34 of the IPC and Sections 126 and 135 of the Electricity Act, 2003. On 4-9-2006, Assistant Engineer Ramswaroop Sinha of Sub-Division Chhavni of the Chhattisgarh State Electricity Board lodged a written report in the Police Station Jamul Bhilai to the effect that on 4-9-2006, of the time of inspection of electric connection of the mini plant of consumer M/s. Kankai Steel Pvt. Limited, Service No. 1001077, Plot No. 138, LIA Bhilai, it was detected that consumer was committing theft of electricity by tampering with seal of electric meter. Theft of electricity was estimated to the tune of 9 lakhs unit per months and by committing such theft. Director (Owner) Pramod Mehta, Ankit Mehta and other Directors have caused loss to the Electricity Board.
4. Receiving this report a case was registered under the above offences. Apprehending arrest in the aforesaid crime applicants filed an application bearing No. 1748/ 2006, for anticipatory bail before the Sessions Judge, Durg. This application came up for hearing before 10th Additional Sessions Judge (FTC), Durg on 14-9-2006. Learned Additional Sessions Judge after hearing parties passed an order granting protection to the applicants in terms of Section 438, Cr. P.C. that:
A. Applicants/accused should not directly or indirectly attempt to induce threat or promise to any witness for destroying evidence. They will co-operate with the Investigating Agency.
B. They will remain present, during the investigation at the places where Investigating Agency directs them.
This order shall remain effective for a period of 45 days with effect from 14-9-2006. During this period, applicants/accused persons shall be entitled to move regular bail application before competent Court and the competent Court without being influenced by this order shall decide the application of the accused persons on its own merit.
5. Thereafter as mentioned in the facts, an application under Section 437, Cr. P.C. was filed on 11-10-2006 before the concerned Judicial Magistrate. The said application was dismissed by the Magistrate on 16-10-2006. Thereafter, they had filed another application bearing No. 2021/2006 for regular bail before the Sessions Court under Section 439, Cr. P.C. which was also heard and dismissed by the Sessions Court on 26-10-2006.
6. After dismissal of the said application on 26-10-2006 applicants filed above M.Cr.C. under Section 439 Cr. P.C. before this Court on 28-10-2006. The matter came up for hearing before this Court on 6-11-2006. On that day, a point was raised that since the period of protective umbrella opened in favour of the applicants has ended on 29-10-2006, therefore, application under Section 439, Cr. P.C. though filed on 28-10-2006, well within the period of protective umbrella, would not be maintainable before the High Court as the applicants would not be held to be in mandated custody for the purpose of filing an application under Section 439, Cr. P.C. by virtue of protective order granted in their favour under Section 438, Cr. P.C.
7. We have heard Shri P. Diwakar, Sr. Advocate with Shri P.R. Patnaik, Advocate for the applicants; Shri P.K. Verma with Shri Ashish Shukla for the State, as also Shri Kanak Tiwari, Sr. Advocate & Shri Y.C. Sharma, Advocate, who assisted the Court and argued in the matter.
8. Shri Kanak Tiwari and Shri P. Diwakar, Sr. Advocate argued that application under Section 439, Cr. P.C. will be maintainable even after expiration of the period of protective umbrella granted under Section 438 without the accused being sent to the judicial custody. The emphasis of Shri Tiwari was that looking to the law laid down by the Constitution Bench of the Apex Court in the matter of Gurbaksh Singh Sibbia etc. v. The State of Punjab , it is not necessary that operation of the order passed under Section 438(1) be limited in the point of time.
9. They further argued that the provisions of Sections 437 and 439 Cr. P.C. have no control over Section 438, Cr. P.C. as this is a special provision inserted in the Code of Criminal Procedure, which has been rightly interpreted by the Apex Court in the matter of Salauddin Abdulsamad Shaikh v. State of Maharashtra , further explained in the matter of K.L. Verma v.State in which it was held that “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 Court, if they so desire.” As the accused persons having moved higher Court, therefore, they are not required to be in custody because after grant if anticipatory bail to the accused persons, they are under deemed custody till their application under Section 439 is finally disposed of by the higher Court.
10. Learned Counsel for the applicants also argued that this Court in the matter of Ramdhani Yadav v. State of C.G. reported in 2005 (2) CGLJ 299, (Para 11) held that once the application is held to be maintainable, because the same was filed during the period of protective umbrella opened in favour of the applicants, some cannot be held to be not maintainable subsequently after the lapse of period of protective umbrella.
11. Their further contention was that the law laid down by the Apex Court in the latter 3 judgments namely, Nirmal Jeet Kaur v. State of M.P. , Sunita Devi v. State of Bihar and Adri Dharan Das v. State of W.B. is contrary to the law laid down by 3 Judges Bench in the matter of Salauddin Abdulsamad Shaikh and K.L. Verma’s case (supra). In case 2 Judges Bench was of the view that the law laid down by the Apex Court in the matters of Salauddin Abdulsamad Shaikh and K.L. Verma’s case (supra), was not a good law, in that case 2 Judges Bench of the Apex Court ought to have referred the matter to the Larger Bench.
12. On the other hand, Shri Pramod Verma, Additional Public Prosecutor argued that after expiry of the period of protective umbrella for filing and hearing of the bail application under Section 439, Cr. P.C. the accused has to surrender to the custody.
13. In order to appreciate arguments advanced by learned Counsel for the parties, it is necessary for us to first go through the law laid down by the Constitution Bench of the Apex Court in the matter of Gurbaksh Singh Sibbia etc. (supra). In the said case, the Apex Court has mentioned in para 4 of the judgment the background in which provisions of Section 438 were inserted in the Code of Criminal Procedure based on the Law Commission of India’s 41st Report dated September 24, 1969. In para 39.9 of its report (Vol. I) it is mentioned that:
The suggestion for directing the release of a person on bail prior to his arrest (commonly known as “anticipatory bail”) was carefully considered by us. Though there is a conflict of judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.
Therefore, with the above laudable purpose based on 41st report of the Law Commission of India, Section 438 was inserted in the Code of Criminal Procedure to save and protect the persons who have been implicated in false cases by influential persons or on account of political rivalry or for other purposes.
14. In Para 7 the Apex Court held that:
The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. Police custody is an inevitable concomitant of arrest for non-bailable offences. An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued.
15. In para 38 the Apex Court observed that:
should the operation of an order passed under Section 438(1) be limited in point of time ? Not necessarily. The Court may, if there are reasons for doing so, limit the operation of the order to a start period until after the filing of an FIR in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the FIR as aforesaid.
16. Furthermore, it is clear, as has been held by the Constitution Bench that difference between Section 438 on the one hand and Section 437 or 439 on the other hand is that Section 438 is applicable when any person apprehends his arrest in non-bailable offence, he applies to the Court, in that case, if the application is allowed, then the Court directs the police that in event of arrest he be released on anticipatory bail, whereas, provisions of Sections 437 and 439 are attracted only after the accused is arrested. If the application under Section 438 is considered when the accused has already been arrested by the police, then that application becomes infructuous.
17. The Apex Court in para 38 of the said judgment held that it is not necessary for the Court to limit the period of operation of the order passed under Section 438(1) Cr. P.C. However, the Court, if there are reasons for doing so, is entitled to limit the operation of the order to a shorter period. Therefore, arguments of Shri Kanak Tiwari and Shri P. Diwakar, learned Senior Counsel, that the Court is not entitled to limit the time period of the bail order passed’ under Section 438 Cr. P.C. is not in consonance with the Constitution Bench judgment, that is why the Apex Court in the matter of Salauddin Abdulasamad Shaikh 1996 Cri LJ 1368 (supra) while interpreting provisions of anticipatory bail held that:
Anticipatory bail is granted to 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 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 realized that when the Court of Session 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 orderes 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 the investigation has made progress or the charge-sheet is submitted.
(Emphasis supplied)
18. If we look into the judgment of Constitution Bench in the case of Gurbaksh Singh Sibbia etc. (supra) provisions of Section 438 were inserted in the Code of Criminal Procedure with a laudable purpose that where in a non-bailable case filed against person or persons, the Court of Session or the High Court based on perusal of the papers submitted before it reaches to the conclusion of the time of hearing that there is possibility of false implication on account of rivalry with influential person or persons for disgracing persons against whom case is allowed or for other purposes by getting them detained in jail for some days. It was mentioned that in recent times, on account of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail. With this purpose, provisions of Section 438 were inserted.
19. As has been held in Salauddin Abdulsamad Shaikh’s case (supra) when the bail application under Section 438, Cr. P.C. is considered the stage of investigation is primary and the police is required to investigate the matter further. When the requirement of Section 438 is satisfied, the Court should normally grant anticipatory bail for a fixed period so as to enable investigating agency to complete investigation.
20. It is not out of place to mention here that time is also available to the accused that he should also co-operate and assist Investigating Agency by producing necessary materials or otherwise to show that no offence is made out against him, thereby both the Investigating Agency as well as accused persons are given time to complete investigation and to bring materials before the Court for consideration and for decision on regular bail of the accused, that is why in Salauddin Abdulsamad Shaikh (supra) the Apex Court observed that
…it must be realized that when the Court of Session 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 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”. Therefore, Sessions Court or the High Court while granting anticipatory bail is always well within power to grant anticipatory bail for a limited period, during that period Investigating Agency should try to investigate the matter and collect materials within that period in order to ascertain the veracity of allegations made in the report against accused persons. At the same time, the accused is also entitled to place material before the Investigating Agency showing false implication or otherwise. Therefore, the stage comes for filing an application under Section 437 and 439, Cr.P.C.
21. In the above judgment, it has also been held that “on expiry” of time granted under Section 438, Cr. P.C. it should be left to the Court hearing regular bail under Section 437 and 439. Therefore, we are of the considered view that after the “expiry” of time granted under Section 438, the provisions of Section 437 and 439 come into play which envisage that the accused to be in custody for the purpose of maintainability of application. Therefore, accused has to be in custody for maintainability of application under Sections 437 and 439, Cr. P.C.
22. The recent trend is that as soon as anticipatory bail is granted to the accused persons at an initial stage of a case, by that time in most of the cases the Investigating Agency has not been able to collect necessary evidence, the accused persons armed with order under Section 438, without waiting for a sufficient period, within the tenure of protective umbrella given to the accused in order to enable Investigating Agency to collect evidence, they are filing regular bail under Section 437 and 439, Cr. P.C. within a week or so the pressure is created on the Court i.e. magisterial Court or Session Court to decide the bail application based on material on which bail application under Section 438 was granted. When we, talk about for investigation, it means the Investigating Agency and victim of crime on the one hand and accused on the other hand must be given reasonable time out of protective umbrella period to place material on record for consideration of Court of the time of decision on an application under Section 437 and 439. When the accused has been enlarged on anticipatory bail under Section 438, protective umbrella has been opened for a certain period, then in all fairness, the Investigating Agency should also be allowed sufficient time within the period of protective umbrella to enable them to collect material and thereafter only bail application under Sections 437 and 439 should be taken up for hearing. In our considered opinion, it would be the correct approach to be adopted by the Court in order to give reasonable opportunity to both Investigating Agency as well as accused persons.
23. The word “custody” has been interpreted by the Apex Court in the matter of Niranjan Singh v. Prabhakar Rajaram Kharote reported in the following” terms:
The crucial question is when is a person in custody within the meaning of Section 439 of the Criminal Procedure Code? When he is in duress either because he is held by the investigating agency or other police or alleged 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 he who is under the control of the Court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439. The Court further held that he can be in custody not merely when the police arrests him, produced him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the Court and submits to its directions.
This view was reiterated by the Apex Court in the matters of Nirmal Jeet Kaur and Sunita Devi’s case (supra). Therefore, if the person appears before the Court i.e. also custody, as he is in subjection to the lawful authority of the Court.
24. Now, coming to the argument ad-vanced by learned Senior Counsel Shri Tiwari that view of the Apex Court in 3 judgments, i.e. in Nirmal Jeet Kaur and Sunita Devi and Adri Dharan Das (supra), that the observation of the Apex Court in the matter of K.L. Verma’s case that even a few days thereafter to enable the accused persons to move the higher Court, if they so desire, is per incuriam, without referring to the Larger Bench, such law cannot be laid down by coordinate jurisdiction.
25. In this regard, if we look into judgment of the Madhya Pradesh High Court in the matter of Smt. Kalabai Choubey v. Rajabahadur Yadav reported in AIR 2002 MP 8, Division Bench of the Madhya Pradesh High Court in para 47 held that:
It is, therefore, obvious that even where there is a direct conflict between the decisions of the co-equal Benches of Hon’ble the Supreme Court, the High Court has to follow the judgment, which appears to it to state the law more elaborately and more accurately and in conformity with the scheme of the Act. Both the views of the Supreme Court cannot be binding on the Courts below. In such a situation, a choice, however, difficult it may be, has to be made.
26. In the cases of Nirmal Jeet Kaur, Sunita Devi and Adri Dharan Das (supra), the Apex Court held that by observation in K.L. Verma’s case that ‘even a few days thereafter to enable the accused persons to move the higher Court, if they so desire’, the requirement of Section 439 of the Code is not wiped out. Section 439 comes into operation only when a person is “in custody”. In view of the clear language of Section 439 and also in view of the decision of the Apex Court in Niranjan Singh’s case (supra) 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 the Apex Court in the aforesaid decision.
27. The Apex Court in the matters of Nirmal Jeet Kaur, Sunita Devi and Adri Dharan Das (supra) held that “For making an application under Section 439 the fundamental requirement is that the accused should be in custody. If the protective umbrella of Section 438 is extended beyond what was laid down in Salauddin case (supra) the result would be clear bypassing of what is mandated in Section 439 regarding custody”. In our considered opinion view taken by the Apex Court in all the 3 judgments i.e. Nirmal Jeet Kaur, Sunita Devi and Adri Dharan Das appears to be more clear and in consonance with the requirement of Section 437 and 439, Cr. P.C. Therefore, weightage cannot be given to the argument of Shri Kanak Tiwari that view taken in K. L. Verma case that even a few days thereafter to enable the accused persons to move the higher Court if they so desire, be accepted.
28. For the foregoing reasons, we are of the considered opinion that even if an application under Section 439, Cr. P.C. is filed within protective umbrella period and same is not disposed of within that period then the accused is required to be in custody he cannot be considered to be in deemed custody after expiration of the period of his protective umbrella and the view taken by the learned single Judge of this Court vide para 11 in the matter of Ramdhani Yadav (supra) that “once it is held that the application was maintainable when it was filed on 6-1-2005 (during the period of protective umbrella of that case), the same cannot be held to be not maintainable subsequently after a lapse of period of two months from the date of the order dated 16-11-2004 (as it was in that case)” does not lay down the correct position of law. On expiration of protective umbrella period in order to enable the Court to take up his application Under Section 437 and 439, Cr. P.C. for consideration, if the accused is not in custody then application is not maintainable.
29. There was another argument that when application under Section 437 and 439 is filed, the accused appears before the Court, as per the law, he will be considered to be in custody of the Court, if the application is decided on that day, bail is granted, then there is no need to send the accused to the judicial custody. Difficulty arises only when application is adjourned, in that case, the accused has to be sent to the judicial custody.
30. Obviously, to overcome that difficulty, either Court should decide application under Sections 437 and 439 on the same day when the accused appears before the Court or wherever the accused feels the Court may call for the case diary for the purpose of deciding bail application in that case, the accused is entitled to inform Public Prosecutor in writing at least 5 days in advance that his bail application under Section 437 and 439 is likely to be taken up for hearing by the Court on such and such date, and he will remains present in the Court therefore, case diary may be kept ready for the purpose of perused of the Court in order to enable the Court to decide bail application.”
31. In the result reference is answered in the following terms:
(i) Even if bail application under Section 437 and 439 of the Cr.P.C. for grant of regular bail is filed within protective umbrella period, but the same is not decided within the period of protective umbrella and is adjourned beyond period of protective umbrella then before such bail application is taken up for hearing, the accused has to be in “custody” only thereafter bail application is maintainable, otherwise same is not maintainable.
(ii) The matter be placed before the learned single Judge to decide the bail application.