Holding

The appellant is not entitled to bail because Section 439 of the Cr.P.C. requires the person to be in custody, which was not the case.

Summary

Vaman Narain Ghiya, accused of smuggling antiques, was charged under IPC sections 413, 457, 380 and 411. He argued that he should be released on bail under Section 439 of the Code of Criminal Procedure, 1973, relying on the fact that he had obtained bail in six of ten cases, had been in custody for over two and a half years, and that the charge under Section 413 had been discharged (later set aside). The Rajasthan High Court rejected his bail application, and the Supreme Court was asked to consider whether the applicant was entitled to bail when not in custody and whether the provisions of Section 439 could be invoked. The Court held that Section 439 applies only when the accused is in custody, and an application under it was therefore not maintainable; detailed evidentiary analysis is unnecessary at the bail stage. Consequently, the appellant was not entitled to bail and the appeal was dismissed.

Issues considered

Whether an application for bail under Section 439 of the Cr.P.C. is maintainable when the accused is not in custody.
Whether the appellant's prior bail in other cases, the discharge of the Section 413 charge, and the length of his detention justify granting bail.
Whether detailed discussion of evidence is required in a bail application.

Legislation cited

Code of Criminal Procedure, 1973s. 2, s. 436, s. 437, s. 438, s. 439
Indian Penal Code, 1860s. 380, s. 411, s. 413, s. 457

Subjects

bailSection 439custodyanticipatory bailCriminal Procedurepresumption of innocencesmugglingappeal

Judgment

[2008] 17 S.C.R. 369

VAMAN NARAIN GHIYA A
-t II.
STATE OF RAJASTHAN
-4
(Criminal Appeal No. 406 of 2008)
DECEMBER 12, 2008
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.]
- _I,.-

Code of Criminal Procedure, 1973 - s.439 - Bail -
Sought by accused - On the grounds that he was released c
on bail in six out of ten cases; that he had been discharged
uls 413 /PC and was facing trial only for offences triable by
Magistrate; that he had been in jail for more than 2~ years;
and that two similarly situated co-accused enlarged on bail -
Rejection of, by High Court - Subsequently the discharge ul
s 413 /PC set aside by High Court and appeal against the
D
order of High Court dismissed as withdrawn - On appeal,
held: Accused not entitled to bail.
Bail - Meaning and purpose of- Principles to be followed
while granting bail - Held: While considering bail application,
E
detailed discussion of evidence and elaborate documentation
of merits to be avoided - An accused is not detained in
custody on assumption of his guilt, but it is a mechanism
whereby the State devolutes upon the community the function
of securing the presence of the prisoner - Balance is to be
maintained between personal liberty of the accused and the F
investigationa/ right of the police and between the requirement
of society being shielded from the hazards of misadvantures
of accused and the fundamental cannon of criminal
jurisprudence of innocence in favour of accused.
Words and Phrases - 'Bail' - Meaning of in the context G
of Code of Criminal Procedure, 1973.
-'</
Niranjan Singh and Anr. v. Prabhakar Rajaram Kharote
and Ors. AIR 1980 SC 785; State of Maharashtra v. Anand
- Chaintaman Dighe AIR 1990 SC 625 and State v.
369 H
370 SUPREME COURT REPORTS [2008] 17 S.C.R.

A Surendranath Mohanty 1990 (3) SCR 462, relied on.
Sa/auddin Abdulsamad Shaikh v. ;State of Maharashtra
AIR 1996 SC 1042; K.L. Verma v. St~te and Anr. 1996 (7)
·SCALE 20; Nirmal Jeet Kaur v. State of M.P. and Anr. 2004
(7) SCC 558; Sunita Devi v. State of Bihar and Anr. 2004
B Supp. (6) SCR 707; A.K. Gopalan v. State of Madras AIR
1950 SC 1000, referred to.
Strouds' Judicial Dictionary (Fourth Edition 1971 ),
referred to. .,._ -
Case Law Reference:
c AIR 1996 SC 1042 Referred to Para 6
1996 (7). SCALE 20) Refeired to Para 7
2004(7) SCC 558 Referred to -Para 8
......
2004 (6) Supp. SCR 707 Refe~red to Para 8
AIR 1950 SC 1000 Referred to Para 15
D
.. AIR 1980 SC 785 Relied on Para 19
AIR 1990 SC 625 Relied on Para 19
'
1990 (3) SCR 462 Relied on Para 19
. CRIMINAL APPEL LATE JURISDlCTl_ON : Criminal Appeal
E No. 406 of 2008.
From the Order dated 3.2.2006 of the High Court of
Judicature for Rajasthan at Jodhpl.Jr in S.B. Criminal Bail
Application No. 2759 of 2005 ...
S.R. Bajwa, Vivek Raj Singh Bajwa, AP. Jain LP. Singh,
F Aklan K Jain, Anurag Jain and N. Annapoorani for the
Appellant.
Aruneshwar Gupta, A.AG., Alt~f Ahmed, Naveen Kumar
Singh Shashwat Gupta and Bharat Bhushan for the
Respondent. ,'
G The Judgment of the Court wa$ delivered by
.DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is
to the order passed by a learned Sin:gle Judge of the Rajasthan

H
High Court at Jodhpur, rejecting the' application for bail filed by
the appellant. An earlier application for bail filed by the -
VAMAN NARAIN GHIYAv. STATE OF RAJASTHAN 311
[DR. ARIJIT PASAYAT, J.]

appellant was also rejected by the High Court by order dated A
., 15.12.2003. Allegation against the appellant was that he is

... involved in several nefarious activities of smuggling of antiques
particularly the idols to foreign countries for heavy sums of
money.
2. Stand·of appellant before the High Court was that he B
was discharged of offence punishable under Section 413 of the
Indian Penal Code, 1860 (in shoct the 'IPC') by the trial Court
. \,.
and therefore he was facing trial only for the offence triable by
the Court of Magistrate, i.e. under Sections 457, 380 and 411
IPC. It was the stand of the appellant that the evidence of the
prosecution witnesses was not sufficient to secure his,
c
conviction in respect of any of the charges. It was pointed out
that evidence of seven witnesses have been recorded and·.
none of them has implicated him in the crime. There is no·
recovery from him and other co-accused persons similarly ·
situated namely, Madam Mohan Agarwal and Manoj Sharma. D
· had been enlarged on bail. Out of 1O cases registered against
_)
him, he has been granted bail in six cases. He is in jail for more ·
than 2 1/2 years and in any case he is entitled to bail in view ·
of the provisions contained in Section 437 (6) of the Code of
Criminal Procedure, 1973 (in short the 'Code'). The State E
opposed the bail application on the ground that in an identical
case the application of the applicant was rejected by the Jaipur
Bench and the matter was carried to this Court and no
interference was made. Further the order of discharge in
respect of offence punishable under Section 413 IPC was F
challenged by filing a revision before the High Court.
•· ~
Considering the aforesaid aspects the prayer for bail was
rejected.
3. Learned counsel for the respondent submitted that
though the proceedings have been stayed and several cases cs
have been clubbed together, the charge sheet was filed on
27.9.2003 and on 21.4.2005 the order of discharge was
..,
.
passed. Subsequently, the order of discharge has been set
aside by the High Court in S.B. Criminal Revision No.817 of
.... 2005. The same order of discharge was challenged before this
H
372 SUPREME COURT REPORTS [2008] 17 S.C.R.

A Court in Criminal Appeal No.1585 of 2007 which was
dismissed as withdrawn. The only distinguishing feature f
pointed out by the appellant lo seek reconsider~tiori of the
prayer for bail was the order of discharge. As noted above, the
same was set aside by the High Court.· Appeal against the
same has been dismissed as withdra~.
-
B
· 4. Section 439 of the Code reads \s follows:
I•
: I -
"439. (1) A High Court or Court of .~ession may direct -
--J. •
(a) that any person accused of an offence and in custody
be released on bail, and if the offence is of the nature
c specified in sub-section (3) of Sect~on 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 any person on bail be set aside or modified."
D
(underlined for emphasis)
5. 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 deals
with "Direction for grant of bail to person apprehending arrest".
E
6. In Salauddin Abdulsamad Shaikh v. State of
Maharashtra (AIR 1996 SC 1042) it was observed as follows:
"Anticipatory bail is granted in anticipation of arrest in non-
bailable cases, but that does notr mean that the regular
F 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 ....-- 4

date of its expiry directed the petitioner to move the regular
court for bail. That is the com~ct procedure to follow
because it must be realised ttilat when the Court of
G Sessions or the High Court is gr~nting 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 o,ffender. It is, therefore, ""
necessary that such anticipatory bail orders should be of
H a limited duration only and ordinarily on the expiry of that
VAMAN NARAIN GHIYA v. STATE OF RAJASTHAN 373
[DR. ARIJIT PASAYAT, J.]

duration or extended duration the court granting A
anticipatory bail should leave it to the regular court to1

deal with the matter on an appreciation of evidence placed
before it after the investigation has made progress or ttle
charge-sheet is submitted".
(Emphasis supplied) B
7. In KL Verma v. State and Anr. (1996 (7) SCALE 20)
this Court observed as follows:
. )or

"This Court further observed that anticipatory bail is
granted in anticipation of arrest in non-bailable cases, but C
that does not mean that the regular court, which is to try
the offender, is sought to be bypassed. It was, thereforE;!,
pointed out that it was necessary that such anticipatory bail
orders should be of a limited duration only and ordinarily
on the expiry of that duration or extended duration the court
granting anticipatory bail should leave it to the regular court D
to deal with the matter on an appreciation of evidence
placed before it after the investigation has made progres~
or the charge-sheet is submitted. By this, what the Cou~
desired to convey was that an order of anticipatory bail ....
does not enure till the end of trial but it must be of limited E
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 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. F
disposed of one way or the other the court may allow the .
accused to remain on anticipatory bail. To put it'
differently, anticipatory bail may be granted for a duration '
which may extend to the date on which the bail
application is disposed of or even a few days thereafter , G
to enable the accused persons to move the higher court,
if they so desire."
{Emphasis supplied) ·
8. In Nirmal Jeet Kaur v. State of M.P. and Another (2004 H
374 SUPREME COURT REPORTS [2008) 17 S.C.R.

A (7) SCC 558) and Sunita Devi v. State of Blhar and Anr.
Criminal Appeal arising out of SLP\ (Crl.)' No. 4601 of 2003
disposed of on 6.12.2004 certain grey are9s 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
8 accused persons to move the Higher Court, if they so desire".
It was held that the requirement of Section 439 of the Code is
not wiped out by the above observations.' Section 439 comes
into operation only when a person is "in custody". In KL
Verma's case (supra) reference was rnade to Salauddin's
C 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. ' ·
D '

9. 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),
tlilere cannot be any doubt that unless a 'person is in custody,
an application for bail under Section 439 of the Code would
E not be maintainable. The question when !a person can be said
to be in custody within the meaning of Se,ction 439 of the Code
came up for consideration before this Court in the aforesaid
decision. ·
10. After analyzing the cruc.ial question that when a person
F is in custody, within the meaning of Sectipn 439 of the Code, it
was held in Nirmal Jeet Kaur's case (supra) and Sunita Devi's ,.
case (supra) that for making an 'Spplication under Section 439
the fundamental requirement is that the,accused should be in
custody. As observed in Salauddin's case (supra) the
G protection in terms of Section ·438 is for a limited ·duration
during which the regular Court has tb be moved for· bail.
Obviously, such bail is bail in terms of Section 439 of the Code,
mandating the applicant to be in cu~tody.' Otherwise, the
distinction between orders under Sections 438 and 439 shall
H be rendered meaningless and redundant.
VAMAN NARAIN GHIYA v. STATE OF RAJASTHAN 375
[DR. ARIJIT PASAYAT, J.]

11. If the protective umbrella of Section 438 is extended A
beyond what was laid down in Sa/auddin'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 upto higher Courts, the requirements of Section 439
become dead letter. No part of a statute can be rendered B
redundant in that manner.
12. Section 438 is a procedural provision which is
concerned with the personal liberty of an individual who is
entitled to plead, innocence, since he is not on the date of
application for exercise of power under Section 438 of the c
Code convicted for the offence in respect of which he seeks
bail. The applicant must show that he has 'reason to believe'.
that he may be arrested in a non-bailable offence. Use of the
expression 'reason to believe' that he may be arrested in a non~
bailable offence. Use of the expression 'reason to believe'
shows that the applicant may be arrested must be founded on ' D
reasonable grounds. Mere "fear'' is not 'belief for which reason
it is not enough for the applicant to show that he has some sort
of vague apprehension that some one is going to make an
accusation against him in pursuance of which he may be
arrested. Grounds on which the belief on the applicant is based E
that he may be arrested in non-bailable offence must be
capable of being examined. If an application is made to the
High Court or the Court of Session, it is for the Court concerned
to de.cide whether a case has been made out of for granting
the relief sought. The provisions cannot be invoked after arrest F
of the accused. A blanket order should not be generally passed.
It flows from the very language of the section which requires the
applicant to show that he has reason to believe that he may
be arrested. A belief can be said to be founded on reasonable
grounds only if there is something tangible to go by on the basis ,
of which it can be said that the applicant's apprehension that G
he may be arrested is genuine. Normally a direction should not
issue to the effect that the applicant shall be released on bail
"whenever arrested for whichever offence whatsoever". Such
'blanket order' should not be passed as it would serve as a
blanket to cover or protect any and every kind of allegedly H
376 SUPREME COURT REPORTS [2008] 17 S.C.R.
e
A unlawful activity. An order under Section 438 is a device is
secure the individual's liberty' it is neither a passport to the' t
commission of crimes nor a shield against any and all kinds of
y.
accusations 'likely or unlikely. On the facts of, the case,
considered in the background of legal position set out above,
B this does not prima facie appear to be a,case where any order
in terms of Section 438 of the Code can be passed.
13. "Bail" remains an undefined term in the Cr.P.C.
Nowhere else the term· has been statutorily defined. .....__ ..
Conceptually, it continues to be understood as a right for
c assertion of freedom against the State imposing restraints
since the U.N. Declaration of Human Rights of 1948, to which
Indian is a signatory, the concept of bail has found a place ~

within the scope of human rights. The dictionary meaning of the
expression 'bail' denotes a security for appearance of a
prisoner for his. release. Etymologically,' the word is derived from
D an old French verb 'bailer' which mea!ls to 'give' or 'to deliver',
although another view is that its derivation is from the Latin term
baiulare, meaning 'to bear a burde,n'. Bail is a conditional
liberty. Strouds' Judicial Dictionary (Fourth Edition 1971) spells
out certain other details. It states: '
E "When a man is taken ,or arrested for felony,
suspicion of felony, indicated of.felony, or any such case,
so that he is restrained of his liberty - And being by law
bailable, offence surety fo thos~ which have authority to
bail him, which sureties are bou~d for him to the Kings use
F in a certain sums of money, or body for body, that he shall
I

appear before the Justices of Goale delivery at the next ,.... .
sessions etc. Then upon the bonds of these sureties, as
is aforesaid, he is bailed, that Is tb say, set at liberty until
the day appointed for his appearance."
I

G 14. Bail may thus be regardeq as a mechanism whereby
the State devolutes upon the community the function of securing
the presence of the prisoners, and at the same time involves
participation of the community in administration of justice.
15. Personal liberty is fundamental and can be
H circumscribed only by some process sanctioned by law. Liberty
VAMAN NARAIN GHIYA v. STATE OF RAJASTHAN 377
[DR ARIJIT PASAYAT, J.]

of a citizen is undoubtedly important but this is to balance with A
the security of the community. A balance is required to be
maintained between the personal liberty of the accused and the
investigational right of the police. It must result in minimum
interference with the personal liberty of the accused and the
right of the police to investigate the case. It has to dovetail two
B
conflicting demands, namely, on one hand, the requirements of
the society for being shielded from the hazards of being
..) exposed to the mis-adventures of a person alleged to have
committed a crime; and on the other, the fundamental cannon
of criminal jurisprudence, viz, the presumption of innocence of
an accused till he is found guilty. Liberty exists in proportion to c
.,. wholesome restrain, the more restraint on others to keep off
from us, the more liberty we have (See A.K. Gopa/an v. State
of Madras AIR 1950 SC 1000).
16. The law of bail, like any other branch of law, has its
own philosophy, and occupies an important place in the' D
administration of justice and the concept of bail emerges from
.)
the conflict between the police power to restrict liberty of a man
I who is alleged to have committed a crime, and presumption
~ of innocence in favour of the alleged criminal. An accused is
not detained in custody with the object of punishing him on the E
assumption of his guilt.

.
'ti 17. Chapter XXXlll consists of Sections 436 to 450.
Sections 436 and 437 provide for the granting of bail to
accused persons before trial and conviction. For the purposes
of bail, offences are classified into two categories, that is, (i) F
-- -..... bailable, (ii) non-bailable. Section 436 provides for granting bail
in bailable cases and Section 437 in non bailable cases. A
person accused of a bailable offence is entitled to be released
on bail pending his trial. In case of such offences, a police
officer has no discretion to refuse bail if the accused is
prepared to furnish surety. The Magistrate gets jurisdiction to
G
... grant bail during the course of investigation when the accused
is produced before him. In bailable offence there is no question
of discretion for granting bail. The only choice for the Court is
as between taking a simple recognizance of the principal
H
378 SUPREME COURT REPORTS [2008) 17 S.C.R.
e )
J-

A Qffender or demanding security with surety. Persons
oontemplated by this Section cannot be taken in custody unless
they are unable or unwilling to offer bail or to execute personal
bonds. The Court has no discretion, when granting bail under
this section, even to impose any ciondition except the
demanding of security with sureties.
8
18. "Bailable offence" is defined in Clause (b) of Section
2 of the Cr.P.C. to mean an offence which is shown as bailable
in the First Schedule of the Cr.P .C., or which is made bailable
by any other law for the time being in force; and "non-bailable
C offence" means an other offence.
19. While considering an appliqation for bail, detailed
discussion of the evidence and elaborate documentation of the
merits is to be avoided. This requi~ement stems from the
desirability that no party should have, the impression that his
case has been pre-judged. Existenc~ of a prima facie case is
0
only to be considered. Elaborate Flnalysis or exhaustive
'.-
exploration of the merits is not requi~ed. (See Niranjan Singh
- andAnr. v. Prabhakar Rajram Kharo(e and Ors. AIR 1980 SC
785). Where the offence is of serious nature the question of
grant of bail has to be decided keeping in view the nature and
E seriousness of the offence, character of the evidence and
amongst others the larger interest of the public. (See State of
Maharashtra v. Anand Chaintaman: Dighe AIR 1990 SC 625
and State v. Surendranath Mohanty 1990 (3) OCR 462).
20. We find no merit in this appeal which is dismissed
F accordingly.
K.K.T. Appeal dismissed.