RASHMI REKHA THATOI & ANR.versusSTATE OF ORISSA & ORS.

                         [2012] 5 S.C.R. 674


                  RASHMI REKHA THATOI & ANR.
                                   v.
                    STATE OF ORISSA & ORS.
                 (Criminal Appeal No. 750 of 2012)

                            MAY 04, 2012
B
       [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

        Code of Criminal Procedure, 1973: s.438 - Bail
   application - High Court whHe entertaining applications u/s. 438
C expressing its opinion that it was not inclined to grant
   anticipatory bail to the accused, yet directing that on their
   surrender some of the accused would be enlarged on bail on
   such terms and conditions as may be deemed fit and proper
   by Magistrate concerned - Propriety of such order - Held: The
o Court of Session or the High Court cannot pass an order that
   on surrendering of the accused before the Magistrate he shall
   be reloased on bail on such terms and conditions as the
   Magistrate may deem fit and proper - When the High Court
   in categorical terms expressed the view that it was not inclined
E to grant anticipatory bail to the accused, it could not have
   issued such direction which would tantamount to conferment
   of benefit by which the accused would be in a position to avoid
   arrest - Court cannot issue a blanket order restraining arrest
   and it can only issue an interim order and the interim order
F must also conform to the requirement of the section and
   suitable conditions should be imposed - Direction to admit
   the accused persons to bail on their surrendering has no
   sanction in law and, in fact, creates a dent in the sacrosanctity
  of law - By passing such kind of orders, the interest of the
G collective at large and that of the individual victim is
  jeopardised - That apart, it curtails the power of the regular
  court dealing with the bail applications - A court of law has to
  act within the statutory command and not deviate from it - It
  is a well settled proposition of law what cannot be done
H                                674
    RASHMI REKHA THATOI & ANR. v. STATE OF                 675
               ORISSA & ORS.
directly, cannot be done indirectly - The statutory exercise of    A
power stands on a different footing than exercise of power of
judicial review - Judging on the foundation of said well settled
 principles, the irresistible conclusion is that the impugned
 orders directing enlargement of bail of the accused persons
by the Magistrate on their surrendering are wholly                 B
 unsustainable and bound to founder and accordingly the said
 directions are set aside - Accused persons, however, entitled
to move applications for grant of bail uls.439 which shall be
 considered on their own merits.

     By impugned orders, the High Court while
                                                                   c
entertaining applications filed under Section 438, Cr.P.C.
had expressed its opinion that it was not inclined to grant
anticipatory bail to the petitioners, yet it directed that on
their surrender some of the accused petitioners would be
enlarged on bail on such terms and conditions as may               D
be deemed fit and proper by concerned SDJM and cases
of certain other accused persons on surrender would be
dealt with on their own merits.

    The question which arose for consideration in the              E
instant appeal was whether the orders passed by the
High Court were legally sustainable within the ambit and
sweep of Section 438, Cr.P.C.

    Disposing of the appeals, the Court
                                                                   F
     HELD: 1. Individual liberty is a very significant aspect
of human existence but it has to be guided and governed
by law. Liberty is to be sustained and achieved when it
is sought to be taken away by permissible legal
parameters. A court of law is required to be guided by the         G
defined jurisdiction and not deal with matters being in the
realm of sympathy or fancy. [Para 7] [681-D-E]

    2. The Court of Session or the High Court cannot
pass an order that on surrendering of the accused before           H
    676      SUPREME COURT REPORTS                [2012] 5 S.C.R.


A the Magistrate he shalli be released on bail on such terms
  and conditions as the Magistrate may deem fit and proper
  or the superior court would impose conditions for grant
  of bail on such surrender. When the High Court in
  categorical terms expressed the view that it did not
B incline to grant anticipatory bail to the accused
  petitioners it could not have issued such a direction
  which would tantamount to conferment of benefit by
  which the accused would be in a position to avoid arrest.
  It is in clear violation of the language employed in the
c statutory provision and in flagrant violation of the dictum
  laid down in the case of *Gurbaksh Singh Sibbia and the
  principles culled out i1n the case of **Savitri Agarwal. It is
  clear as crystal the court cannot issue a blanket order
  restraining arrest and it can only issue an interim order
  and the interim order must also conform to the
D
  requirement of the sec:tion and suitable conditions should
  be imposed. [Para 30] [693-C-F]

          *Gurbaksh Singh Sibbia etc. v. The State of Punjab AIR
    1980 SC 1632:1980 (~~) SCR 383 - followed.
E
          **Savitri Agarwal v State of Maharashtra and Anr. (2009)
    8 sec 325:2009 (10) SCR 978 - relied on.

       3. The direction to admit the accused persons to bail
  on their surrendering has no sanction in law and, in fact,
F creates a dent in the sacrosanctity of law. It is
  contradictory in terms and law does not countenance
  paradoxes. It gains rEispectability and acceptability when
  its solemnity is maintained. Passing such kind of orders
  the interest of the c:ollective at large and that of the
G individual victims is jE!Opardised. That apart, it curtails the
  power of the regular court dealing with the bail
  applications. [Para 3'1] [694-E-F]

          Dr. Narendra K. Amin v.   ~tate of Gujarat and another
H
    RASHMI REKHA THATOI & ANR. v. STATE OF              677
               ORISSA & ORS.
2008 (6) SCALE415; Puran v. Rambilas and another (2001)        A
6 sec 338: 2001 (3) SCR432 - relied on.

    4. A court of law has to act within the statutory
command and not deviate from it. It is a well settled
proposition of law what cannot be done directly, cannot
                                                               8
be done indirectly. While exercising a statutory power, a
court is bound to act within the four corners thereof. The
statutory exercise of power stands on a different footing
than exercise of power of judicial review. Judging on the
foundation of said well settled principles, the irresistible   C
conclusion is that the impugned orders directing
enlargement of bail of the accused persons by the
Magistrate on their surrendering are wholly unsustainable
and bound to founder and accordingly the said directions
are set aside. Consequently the bail bonds of the
accused persons are cancelled and they shall be taken          D
into custody forthwith. They are, however, entitled to
move applications for grant of bail under Section 439 of
the Code which shall be considered on their own merits.
[Paras 32- 33) [694-G-H; 695-A-D]
                                                               E
     Bay Berry Apartments (P) Ltd. and Anr. v. Shobha and
Ors. (2006) 13SCC 737: 2006 (7) Suppl. SCR 738; UP.
State Brassware Corporation Ltd. and Anr. v. Uday Narain
Pandey (2006) 1 SCC 479: 2005 (5) Suppl. SCR 609 - relied
on.                                                            F
    Balchand Jain v. State of Madhya Pradesh AIR 1976 SC
366; Salauddin Abdulsamad Shaikh v. State of Maharashta
AIR 1996 SC 1042: 1995 (6) Suppl. SCR 556; K.L. Verma
v. State and Anr. (1998) 9 SCC 348; Nirmal Jeet Kaur v.
State of M. P. and Another (2004) 7 SCC 558: 2004 (3) Suppl.   G
SCR 1006; Adri Dharan Das v. State of West Bengal (2005)
4 SCC 303: 2005 (2) SCR 188; Niranjan Singh and Anr. v.
Prabhakar Rajaram Kharote and Ors. (1980) 2 SCC 559:
1980 (3) SCR 15; Union of India v. Padam Narain Agarwal
AIR 2009 SC 254: 2008 (14) SCR 179; State of Mahrashtra        H
    678    SUPREME COUHT REPORTS               [2012] 5 S.C.R.


A   v. Mohd. Rashid and Anr. (2005) 7 SCC 56: 2005 (1) Suppl.
    SCR 817; Sunita Devi v. State of Bihar & Anr. (2005) 1 SCC.
    608: 2004 (6) Suppl. SCR 707; Siddharam Satlingappa
    Mhetre v. State of Maharashtra and Ors. (2011) 1 SCC 694:
    2010 (15) SCR 201 - referred to.
B
                         Case Law Reference:

      1980 (3) SCR 383           followed       Para 18,22,28,
                                                29, 30

      AIR 1976 SC 366            referred to    Para 19
c
      2009 (10) SCR 978          relied on      Para 22

      1995 (6) Suppl. SCR 556 referred to       Para 23, 27,29

      (1998) 9 sec 348           referred to    Para 24,25,27
D
      2004 (3) Suppl. SCR 1006 referred to      Para 25,27
      2005 (2) SCR 188           referred to    Para 26,28,29
      1980 (3) SCR 15            referred to   Para 27
E     2008 (14) SCR 179          referred to   Para 28

      2005 (1) Suppl. SCR 817 referred to      Para 28

      2004 (6) Suppl. SCR 707 referred to      Para 29

F     2010 (15) SCR 201          referred to   Para 29

      2008 (6) SCALE 4115        relied on     Para 31
      2001 (3) SCR 432          relied on      Para 31
      2006 (7) Suppl. SC:R 738 relied on       Para 32
G
      2005 (5) Suppl. SCR 609 relied on        Para 32

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 750 of 2012 etc.

H
    RASHMI REKHA THATOI & ANR. v. STATE OF                    679
               ORISSA & ORS.
    From the Judgment & Order dated 22.07.2011 of the High            A
Court of Orissa at Cuttack in BLAPL No. 13036 of 2011.
                                 WITH
Crl. A. No. 751 of 2012.

     Rekha Pandey, Ambika Das, Sailaja V. for the Appellants.         B

    Sandhya Goswami, M.P.S. Tomar, Jabar Singh, Jitendra
Mohapatra, Chandra Bhushan Prasad, Syed Rehan for the
Respondents.

    The Judgment of the Court was delivered by
                                                                      c

     DIPAK MISRA, J. 1. Leave granted in both the petitions.

     2. "Liberty is to the collective body, what health is to every
individual body. Without health no pleasure can be tasted by          o
man; without Liberty, no happiness can be enjoyed by society."

     Thus spoke Bolingbroke.

     3. Liberty is the precious possession of the human soul.
No one would barter it for all the tea in China. Not for nothing      E
Patrick Henry thundered:

     "Is life so dear, or peace so sweet, as to be purchased at
     the price of chains and slavery? Forbid it, Almighty God !
     I know not what course others may take, but as for me, give      F
     me liberty, or give me death !"

     The thought of losing one's liberty immediately brings in a
feeling of fear, a shiver in the spine, an anguish of terrible
trauma, an uncontrollable agony, a penetrating nightmarish
perplexity and above all a sense of vacuum withering the very G
essence of existence. It is because liberty is deep as eternity
and deprivation of it, infernal. May be for this protectors of liberty
ask, "How acquisition of entire wealth of the world would be of
any consequence if one's soul is lost?" It has been quite often
                                                                       H
    680        SUPREME COU'RT REPORTS                    [2012] 5 S.C.R.


A   said that life without liberty is eyes without vision, ears without
    hearing power and mind without coherent thinking faculty.

       4. A!most two centu1·ies and a decade back thus spoke
    Edmund Burke: -

B         "Men are qualified for civil liberty, in exact proportion to
          their disposition to put moral chains upon their own
          app13tites; in proportion as their love to justice is above their
          rapacity; in proportion as their soundness and sobriety of
          understanding is above their vanity and presumption; in
C         proportion as they are more disposed to listen to the
          counsel of the wise and good, in preference to the flattery
          of knaves. Society cannot exist unless a controlling power
          upon will and appetite be placed somewhere and the less
          of it there is within, the more there must be without. It is
D         ordained in the eternal constitution of things that men of
          intemperate minds cannot be free. Their passions forge
          their fetters."

          5. Similar voice was echoed by E. Barrett Prettyman, a
E   retired Chief Judge of U.S. Court of Appeals:-

          "ln an ordered society of mankind there is no such thing
          as unrestricted libe~rty, either of nations or of individuals.
          Liberty itself is thE~ product restraints; it is inherently a
          composite of restraints; it dies when restraints are
F         withdrawn. Freedom, I say, is not an absence of restraints;
          it is a composite of restraints. There is no liberty without
          order. There is no order without systematized restraint.
          RE3straints are the substance without which liberty does not
          exist. They are the essence of liberty. The great problem
G         of the democratic process is not to strip men of restraints
          merely because 'they are restraints. The great problem is
          to design a system of restraints which will nurture the
          maximum development of man's capabilities, not in a
          massive globe of faceless animations but as a perfect
H         malization, of each separate human mind, soul and body;
    RASHMI REKHA THATOI & ANR. v. STATE OF                    681
        ORISSA & ORS. [DIPAK MISRA, J.]
     not in mute, motionless meditation but in flashing, thrashing    A
     activity."

      6. Keeping the cherished idea of liberty in mind, the fathers
of our Constitution engrafted in its Preamble: "Liberty of
thought, expression, belief, faith and worship." After a lot of
                                                                      8
debate in the Constituent Assembly, Article 21 of the
Constitution came into existence in the present form laying
down in categorical terms that no person shall be deprived of
his life and personal liberty except according to the procedure
established by law.
                                                                      c
      7. We have begun with the aforesaid prologue, as the
seminal question that falls for consideration in these appeals
is whether the High Court, despite the value attached to the
concept of liberty, could afford to vaporise the statutory mandate
enshrined under Section 438 of the Code of Criminal                   D
Procedure (for short 'the Code'). It is not to be forgotten that
liberty is not an absolute abstract concept. True it is, individual
liberty is a very significant aspect of human existence but it has
to be guided and governed by law. Liberty is to be sustained
and achieved when it sought to be taken away by permissible           E
legal parameters. A court of law is required to be guided by
the defined jurisdiction and not deal with matters being in the
realm of sympathy or fancy.

     8. Presently to the narration. In these two appeals arising
out of SLP No. 7281 of 2011 and 7286 of 2011, the challenge
                                                                      F
is to the orders dated 22.07.2011 and 05.08.2011 in BLAPL
No. 13036 of 2011 and 12975 of 2011 respectively passed by
the High Court of Judicature of Orissa at Cuttack in respect of
five accused persons under Section 438 of the Code pertaining
to offences punishable under Section 341/294/506 and 302              G
read with Section 34 of the Indian Penal Code (for short "the
IPC") in connection with Binjharpur PS Case No. 88/2011
corresponding to GR Case No. 343 of 2011 pending in the
Court of learned SDJM, Jajpur.
                                                                      H
    682       SUPREME COURT REPORTS                  [2012] 5 S.C.R.

A         9. The present appeals have been preferred by the sister
    of the deceased and the complainant, an eye witness, seeking
    quashing of the orders on the foundation that the High Court
    has extended the benefit of Section 438 (1) of the Code in an
    illegal and impermissible manner.
B
       10. The facts that had formed the bedrock in setting the
  criminal law in motion need not be stated, for the nature of
  orders passed by High Court in both the cases have their own
  peculiarity. If we allow ourselves to say they have the enormous
  potentiality to create colossal puzzlement as regards the
C exercise of power und1er Section 438 of the Code.

         1·1. While dealing with the case of accused Uttam Das and
    Ranjit Das, vide order dated 22.07.2011 the High Court, as
    stated, perused the case file and passed the following order.
D
          "Considering the facts and circumstances of the case and
          the materials available on record, this Court is not inclined
          to grant anticipatory bail to the petitioners. This court
          directs that if p13titioner No. 1 Uttam Das surrenders
          l>efore the learned S.D.J.M., Jajpur and moves an
E
          application for bail in the aforesaid case, in such event
          the learned S.D.J.M. shall release him on bail on such
          terms and conditions as he may deem fit and proper.

                 So far as petitioner No. 2 Ranjit Das is concerned,
F         this court directs him to surrender before the learned
          S.D.J.M., Jajpur and move an application for bail in
          connection with the aforesaid case, in such event his
          application shall be considered by the learned S.D.J.M.,
          on its own merits.
G
               The Bail Application is accordingly disposed of."

                                                 [Underlining is ours]

          12. In the casei of the other accused persons, namely,
    RASHMI REKHA THATOI & ANR. v. STATE OF                  683
        ORISSA & ORS. [DIPAK MISRA, J.]
Abhimanyu Das, Murlidhar Patra and Bhagu Das the High Court         A
on 05.08.2011 passed the order on following terms.

          "Considering the facts and circumstances of the
    case this Court is not inclined to grant anticipatory bail to
    the petitioners. Since there are some materials against
                                                                    8
    Bhagu Das @ Sanjit Kumar Das petitioner No. 3, this Court
    directs that in case petitioner No. 3 surrenders before the
    leaned S.D.J.M., Jajpur and moves an application for bail,
    the learned S.D.J.M. shall consider and dispose of the
    same on its own merit in accordance with law.
                                                                    c
          So far as the prayer for bail of petitioner Nos. 1 and
    2 is concerned since one of the co-accused namely,
    Uttam Das has been released on bail in pursuance of
    order dated 02.07.2011 passed by this Court in BLAPL
    No. 13036 of 2011 and petitioner Nos. 1 and 2 stands D
    on similar footing with co-accused Uttam Das, this Court
    directs that in case petitioner Nos. 1 and 2 surrender
    before the learned S.D.J.M., Jajpur and move an
    application for bail, the learned S.D.J.M., shall release
    them on bail on such terms and conditions as he may E
    deem fit and proper with further condition that petitioner
    Nos. 1 and 2 shall give an undertaking before the Court
    below that they will not commit any similar type of offence.
    In case any complaint is received against them that will
    amount to cancellation of bail"                                 F

                                           [Emphasis supplied]

     13. On a perusal of both the orders it is perceivable that
the commonality in both the orders is that while the High Court
had expressed its opinion that though it is not inclined to grant   G
anticipatory bail to the petitioners yet it has directed on their
surrender some of the accused petitioners would be enlarged
on bail on such terms and conditions as may be deemed fit
and proper by the concerned Sub Divisional Judicial Magistrate
                                                                    H
    684       SUPREME COURT REPORTS                    [2012] 5 S.C.R.


A and cases of certain accused persons on surrender shall be
  dealt with on their own merits.

        14. The learned counsel for the petitioner has contended
  that the High Court has gravely flawed in passing such kind of
  orders in exercise of power under Section 438 of the Code
8
  which the law does not countenance and, therefore, they
  deserved to be lancinated. It is his further submission that when
  the accused persons are involved in such serious offences the
  High Court could not have dealt with them by taking recourse
  to an innovative method which has no sanction in law.
c
         15. The learned counsel for the respondent made a very
    feeble attempt to support the orders.

       16. The pivotal is.sue that emanates for consideration is
0 whether the orders passed by the High Court are legitimately
  acceptable and legally sustainable within the ambit and sweep
  of Section 438 of the Code. To appreciate the defensibility of
  the order it is condign to refer to Section 438 of the Code which
  reads as follows.
E         "438. Direction for grant of bail to person
          apprehending arrest.--(1) Where any person has reason
          to believe that he may be arrested on accusation of having
          committed a non··bailable offence, he may apply to the High
          Court or the Court of Session for a direction under this
F         section that in thre event of such arrest he shall be released
          on bail; and that Court may, after taking into consideration,
          inter alia, the following factors, namely:-

                 (i) the nature and gravity of the accusation;
G
                 (ii) the antecedents of the applicant including the
                 fact as to whether he has previously undergone
                 imprisonment on conviction by a Court in respect
                 of any cognizable offence;

H
RASHMI REKHA THATOI & ANR. v. STATE OF                   685
    ORISSA & ORS. [DIPAK MISRA, J.]
       (iii) the possibility of the applicant to flee from       A
       justice; and

       (iv) where the accusation has been made with the
       object of injuring or humiliating the applicant by
       having him so arrested,
                                                                 B
either reject the application forthwith or issue an interim
order for the grant of anticipatory bail:

Provided that, where the High Court or, as the case may
be, the Court of Session, has not passed any interim order       c
under this sub-section or has rejected the application for
grant of anticipatory bail, it shall be open to an officer in-
charge of a police station to arrest, without warrant the
applicant on the basis of the accusation apprehended in
such application.
                                                                 D
(1A) Where the Court grants an interim order under sub-
section (1 ), it shall forthwith cause a notice being not less
than seven days notice, together with a copy of such order
to be served on the Public Prosecutor and the
Superintendent of Police, with a view to give the Public         E
Prosecutor a reasonable opportunity of being heard when
the application shall be finally heard by the Court.

(1 B) The presence of the applicant seeking anticipatory
bail shall be obligatory at the time of final hearing of the     F
application and passing of final order by the Court, if on
an application made to it by the Public Prosecutor, the
Court considers such presence necessary in the interest
of justice.

(2) When the High Court or the Court of Session makes a          G
direction under sub-section (1 ), it may include such
conditions in such directions in the light of the facts of the
particular case, as it may thinks fit, including -

       (i) a condition that the person shall make himself        H
    686       SUPREME COURT REPORTS                    [2012] 5 S.C.R.


A                 available for interrogation by a police officer as and
                  when required;

                 (ii) a condltion that the person shall not, directly or
                 indirectly, make any inducement, threat or promise
                 to any person acquainted with the facts of the case
8                so as to dissuade him from disclosing such facts
                 to the court or to any police officer;

                 (iii) a condition that the person shall not leave India
                 without the previous permission of the court;
c                (iv) such other condition as may be imposed under
                 sub-section (3) of section 437, as if the bail were
                 granted -under that section.

          (3) If such person is thereafter arrested without warrant by
D         an officer in charge of a police station on such accusation,
          and is prepared either at the time of arrest or at any time
          while in the cus1tody of such officer to give bail, he shall be
          released on bail, and if a Magistrate taking cognizance of
          such offence decides that a warrant should issue in the first
E         instance against that person, he shall issue a bailable
          warrant in conformity with the direction of the court under
          sub-section (1)."

        17. The aforesaid provision in its denotative compass and
F connotative expanse enables one to apply and submit an
  application for bail where one anticipates his arrest in a non-
  bai lable offence. Though the provision does not use the
  expression anticipatory bail, yet the same has come in vogue
  by general usage aind also has gained acceptation in the legal
G world.
         18. The Constitution Bench in Gurbaksh Singh Sibbia etc.
    v. The State of Punjab 1, has drawn a distinction between an
    order of ordinary bail and order of anticipatory bail by stating

H 1. AIR 1980 SC 1632..
     RASHMI REKHA THATOI & ANR. v. STATE OF                    687
         ORISSA & ORS. [DIPAK MISRA, J.]
that the former is granted when the accused is in custody and,         A
therefore, means release from the custody of the Police, and
the latter is granted in anticipation of arrest and hence, effective
at the very moment of arrest. It has been held therein, an order
of anticipatory bail constitutes, so to say, an insurance against
Police custody falling upon arrest for offences in respect of          B
which the order is issued. Their Lordships clarifying the
distinction have observed that unlike a post-arrest order of bail,
it is a pre-arrest legal process which directs that if the person
in whose favour it is issued is thereafter arrested on the
accusation in respect of which the direction is issued, he shall       c
be released on bail.

     19. The Constitution Bench partly accepted the verdict in
Ba/chand Jain v. State of Madhya Pradesh 2 by stating as
follows:-
                                                                       D
      "We agree, with respect, that the power conferred by S.
      438 is of an extraordinary character in the sense indicated
      above, namely, that it is not ordinarily resorted to like the
      power conferred by Ss. 437 and 439. We also agree that
      the power to grant anticipatory bail should be exercised         E
      with due care and circumspection."

      20. Thereafter, the larger Bench referred to the concept of
liberty engrafted in Article 21 of the Constitution, situational and
circumstantial differences from case to case and observed that
in regard to anticipatory bail, if the proposed accusation
                                                                       F
appears to stem not from motives of furthering the ends of
justice but from some ulterior motive, the object being to injure
and humiliate the applicant by having him arrested, a direction
for the release of the applicant on bail in the event of his arrest
would generally be made. On the other hand, if it appears likely,      G
considering the antecedents of the applicant, that taking
advantage of the order of anticipatory bail he will flee from
justice, such an order would not be made. However, it cannot

2.   AIR 1976 SC 366.                                                  H
    688       SUPREME COURT REPORTS                   (2012) 5 S.C.R.


A be laid down as an inexorable rule that anticipatory bail cannot
  be granted unless the proposed accusation appears to be
  actuated by mala fides; and equally, that anticipatory bail must
  be granted if there is no fear that the applicant will abscond.
  The Constitution Bench also opined the Court has to take into
B consideration the combined effect of several other
  considerations which are too numerous to enumerate and the
  legislature has endowed the responsibility on the High Court
  and the Court of Session because of their experience.

       21. The Constitution Bench proceeded to state the
C essemtial concept of exercise of jurisdiction under Section 438
  of the Code on following terms:-

          "Exercise of jurisdiction under Section 438 of Code of
          Criminal Procedure is extremely important judicial function
D         of a judge and must be entrusted to judicial officers with
          some experience and good track record. Both individual
          and society have vital interest in orders passed by the
          courts in anticipatory bail applications."

E        22. In Savitri Agarwal v. State of Maharashtra and Anr. 3,
    the Bench culled out the principles laid down in Gurbaksh Singh
    (supra). Some principles which are necessary to be reproduced
    are as follows:-

          " (i) Before power under Sub-section (1) of Section 438
F         of the Code is exercised, the Court must be satisfied that
          the applicant invoking the provision has reason to believe
          that he is likely to be arrested for a non-bailable offence
          and that belief must be founded on reasonable grounds.
          Mere "fear" is not belief, for which reason, it is not enough
G         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. The grounds on which the belief of the applicant
          is based that he may be arrested for a non-bailable
H 3. (2009) as sec 32fi ..
     RASHMI REKHA THATOI & ANR. v. STATE OF                   689
         ORISSA & ORS. [DIPAK MISRA, J.]

      offence, must be capable of being examined by the Court A
      objectively. Specific events and facts must be disclosed
      by the applicant in order to enable the Court to judge of
      the reasonableness of his belief, the existence of which is
      the sine qua non of the exercise of power conferred by the
      Section.                                                    B

      ii) The provisions of Section 438 cannot be invoked after
      the arrest of the accused. After arrest, the accused must
      seek his remedy under Section 437 or Section 439 of the
      Code, if he wants to be released on bail in respect of the      C
      offence or offences for which he is arrested.

      viii) An interim bail order can be passed under Section 438
      of the Code without notice to the Public Prosecutor but
      notice should be issued to the Public Prosecutor or to the
      Government advocate forthwith and the question of bail          D
      should be re-examined in the light of respective contentions
      of the parties. The ad-interim order too must conform to
      the requirements of the Section and suitable conditions
      should be imposed on the applicant even at that stage."
                                                                      E
      23. At this juncture we may note with profit that there was
some departure in certain decisions after the Constitution
Bench decision. In Sa/auddin Abdulsamad Shaikh v. State of
Maharashta 4, it was held that it was necessary that under
certain circumstances anticipatory bail order should be of a
limited duration only and ordinarily on the expiry of that duration   F
or extended duration the Court granting anticipatory bail should
leave it to the regular court to deal with the matter on
appreciation of material placed before it.

      24. In K. L. Verma v. State and Anr. 5, it was ruled that       G
limited duration must be determined having regard to the facts
of the case and the need to give the accused sufficient time to

4.   AIR 1996 SC 1042.
s.   (1998) 9 sec 348.                                                H
    690       SUPREME COURT REPORTS                 [2012] 5 S.C.R.


A   move the court for regular bail and to give the regular court
    sufficient time to determine the bail application. It was further
    observed therein that till the bail application is disposed of one
    way or the other, the Court may allow the accused to remain
    on anticipatory bail.
B
          25. In Nirma/ Jeel' Kaur v. State of M. P. and Another6,
    the decision in K. L. Verma's case (supra) was clarified by
    stating that the benefit of anticipatory bail may be extended few
    days thereafter to enable the accused persons to move the High
    Court if they so desire.
c
        26. In Adri Dharan Das v. State of West Benga/7, a two-
   Judge Bench while accepting for grant of bail for limited
  duration has held that arrest is a part of the process of
  investigation intended to secure several purposes. The
D accused may have to be questioned in detail regarding various
  facets of motive, preparation, commission and aftermath of the
  crime and the connection of other persons, if any, in the crime.
  There may be circumstances in which the accused may provide
  information leading to discovery of material facts. It may be
E necessary to curtail his freedom in order to enable the
  investigation to proceed without hindrance and to protect
  witnesses and persons connected with the victim of the crime,
  to prevent his disappearance to maintain law and order in the
  locality. For these or other reasons, arrest may become
F inevitable part of the process of investigation. The legality of
  the proposed arrest cannot be gone into in an application under
  Section 438 of the Code. The role of the investigator is well-
  defined and the jurisdictional scope of interference by the Court
  in the process of inv1:!stigation is limited. The Court ordinarily
G will not interfere with the investigation of a crime or with the
  arrest of accused in a cognizable offence. An interim order
  restraining arrest, if passed while dealing with an application
  under Section 438 o'f the Code will amount to interference in
    a.   (2004) 1 sec 558.
H   7.   (2005) 4 sec 303.
     RASHMI REKHA THATOI & ANR. v. STATE OF                691
         ORISSA & ORS. [DIPAK MISRA, J.]

the investigation, which cannot, at any rate, be done under       A
Section 438 of the Code.

    27. After analysing the ratio in the cases of Salauddin
Abdu/samad Shaikh (supra), K. L. Verma (supra), Nirmal Jeet
Kaur (supra), Niranjan Singh and Anr. v. Prabhakar Rajaram        8
Kharote and Ors. 8 the Bench opined thus:-

     "14. 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 C
     under Section 439 the funqamental requirement is that the
     accused should be in custbdy. 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 D
     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 and
     redundant.
                                                                 E
     15. If the protective umbrella of Section 438 is extended
     beyond what was laid down in Salauddin's case (supra)
     the result would be clear bypassing of what is mandated
     in Section 439 regarding custody. In other words, till the
     applicant avails remedies up to higher Courts, the F
     requirements of Section 439 become dead letter. No part
     of a statute can be rendered redundant in that manner."

     28. In Union of India v. Padam Narain Agarwa/9 this Court
while dealing with an order wherein the High Court had directed
that the respondent therein shall appear before the concerned     G
customs authorities in response to the summons issued to them
and in case the custom authorities found a non-bailable against

8.   (1980) 2 sec 559.
9.   AIR 2009 SC 254.                                             H
    692       SUPREME COURT REPORTS                    (2012] 5 S.C.R.


A   the accused persons they shall not arrest without ten days prior
    notice to them. The two--Judge Bench relied on the decisions
    in Gurbaksh Singh Sibbia (supra), Adri Dharan Das (supra),
    and State of Mahrashtra v. Mohd. Rashid and Anr. 10 and
    eventually held thus:-
B
          "In our judgment, on the facts and in the circumstances of
          the present case, neither of the above directions can be
          said to be legal, valid or in consonance with law. Firstly,
          the order passed by the High Court is a blanket one as
          held by the Constitution Bench of this Court in Gurbaksh
c         Singh and seeks to grant protection to respondents in
          respect of any non-bailable offence. Secondly, it illegally
          obstructs, interferes and curtails the authority of Custom
          Officers from exercising statutory power of arrest a person
          said to have committed a non-bailable offence by
D         imposing a condition of giving ten days prior notice, a
          condition not warranted by law. The order passed by the
          High Court to the extent of directions issued to the Custom
          Authorities is, therefore, liable to be set aside and is hereby
          set aside."
E
          29. Be it noted, the principle of grant of anticipatory bail
    for a limited duration in cases of Salauddin Abdulsamad
    Shaikh (supra), K. L. V1~rma (supra), Adri Dharan Das (supra),
    Sunita Devi v. State of Bihar & Anr. 11 was held to be contrary
F   to the Constitution decision in Gurbaksh Singh Sibbia's case
    (supra) by a two-Jud!~e Bench in Siddharam Satlingappa
    Mhetm v. State of Maharashtra and Ors. 12 and accordingly the
    said decisions were tre!ated as per incurium. It is worth noting
    though the Bench treated Adri Dharan Das (supra) to be per
G   incuriam, as far as it pertained to grant of anticipatory bail for
    limited duration, yet it has not held that the view expressed
    therein that the earlier decisions pertaining to the concept of
    10. c2005J 7 sec 56.
    11. (2005) 1 sec 6oa.
H   12. c2011i 1 sec 694.
    RASHMI REKHA THATOI & ANR. v. STATE OF                  693
        ORISSA & ORS. [DIPAK MISRA, J.]
deemed custody as laid down in Salauddin Abdulsamad                 A
Shaikh (supra) and similar line of cases was per incuriam. It
is so as the controversy involved in Siddharam Satlingappa
Mhetre (supra) did not relate to the said arena.

      30. We have referred to the aforesaid pronouncements to       B
highlight how the Constitution Bench in the case of Gurbaksh
Singh Sibbia (supra) had analysed and explained the intrinsic
underlying concepts under Section 438 of the Code, the nature
of orders to be passed while conferring the said privilege, the
conditions that are imposable and the discretions to be used        C
by the courts. On a reading of the said authoritative
pronouncement and the principles that have been culled out in
Savitri Agarwal (supra) there is remotely no indication that the
Court of Session or the High Court can pass an order that on
surrendering of the accused before the Magistrate he shall be
released on bail on such terms and conditions as the learned        D
Magistrate may deem fit and proper or the superior court would
impose conditions for grant of bail on such surrender. When
the High Court in categorical terms has expressed the view that
it not inclined to grant anticipatory bail to the accused
petitioners it could not have issued such a direction which would   E
tantamount to conferment of benefit by which the accused would
be in a position to avoid arrest. It is in clear violation of the
language employed in the statutory provision and in flagrant
violation of the dictum laid down in the case of Gurbaksh Singh
Sibbia (supra) and the principles culled out in the case of         F
Savitri Agarwal (supra). It is clear as crystal the court cannot.
issue a blanket order restraining arrest and it can only issue
an interim order and the interim order must also conform to the
requirement of the section and suitable conditions should be
imposed. In the case of Gurbaksh Singh Sibbia (supra) the           G
Constitution Bench has clearly observed that exercise of
jurisdiction under Section 438 of the Code is an extremely
important judicial function of a judge and both individual and
25. 1950 SCR 88.
26. (1994) 3 sec 1.                                                 H
    694      SUPREME COURT REPORTS                      [2012] 5 S.C.R.

A society have vital interest in the orders passed by the court in
  anticipatory bail applications.

          31. In this context it is profitable to refer to a three-Judge
    Bench decision in Dr. Narendra K. Amin v. State of Gujarat
B   and another13 • In the said case a learned Judge of the Gujarat
    High Court cancelled the bail granted to the appellant therein
    in exercise of power under Section 439(2) of the Code. It was
    contended before this Court that the High Court had completely
    erred by not properly appreciating the distinction between the
    parameters for grant of bail and cancellation of bail. The Bench
C   referred to the decision in Puran v. Rambilas and another14
    wherein it has been noted that the concept of setting aside an
    unjustified, illegal or perverse order is totally different from the
    cancelling an order of bail on the ground that the accused has
    misconducted himself or because of some supervening
D   circumstances warranting such cancellation. The three-Judge
    Bench further observed that when irrelevant materials have been
    taken into consideration the same makes the order granting bail
    vulnerable. In essence, the three-Judge Bench has opined that
    if the order is perverse, the same can be set at naught by the
E   superior court. In the case at hand the direction to admit the
    accused persons to bail on their surrendering has no sanction
    in law and, in fact, creates a dent in the sacrosanctity of law. It
    is contradictory in terms and law does not countenance
    paradoxes. It gains respectability and acceptability when its
F   solemnity is maintained. Passing such kind of orders the
    interest of the collectiv1e at large and that of the individual victims
    is jeopardised. That apart, it curtails the power of the regular
    court dealing with the' bail applications.

G        32. In this regard it is to be borne in mind that a court of
    law has to act within the statutory command and not deviate
    from it. It is a well settled proposition of law what cannot be done
    directly, cannot be done indirectly. While exercising a statutory
    13. 2008 (6) SCALE 415.
H   14. (2001) 6 sec 338.
    RASHMI REKHA THATOI & ANR. v. STATE OF                  695
        ORISSA & ORS. [DIPAK MISRA, J.]
power a court is bound to act within the four corners thereof.      A
The statutory exercise of power stands on a different footing
than exercise of power of judicial review. This has been so
stated in Bay Berry Apartments (P) Ltd. and Anr. v. Shobha
and Ors. 15 and UP. State Brassware Corporation Ltd. and Anr.
v. Uday Narain Pandey16 •                                           B

      33. Judging on the foundation of aforesaid well settled
principles, the irresistible conclusion is that the impugned
orders directing enlargement of bail of the accused persons,
namely, Uttam Das, Abhimanyu Das and Murlidhar Patra by the         C
Magistrate on their surrendering are wholly unsustainable and
bound to founder and accordingly the said directions are set
aside. Consequently the bail bonds of the aforenamed accused
persons are cancelled and they shall be taken into custody
forthwith. It needs no special emphasis to state that they are
entitled to move applications for grant of bail under Section 439   D
of the Code which shall be considered on their own merits.

       34. The appeals are accordingly disposed of.

D.G.                                     Appeals disposed of.




1s. (2006) 13 sec 737.
16. (2006) 1 sec 479.