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2000 DIGILAW 53 (CAL)

Maya Rani Guin v. State of West Bengal

2000-01-28

Debiprasad Sengupta, Sujit Barman Roy

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JUDGMENT Sujit Barman Roy, J. : Petitioners are apprehending arrest on an accusation of having committed some non-bailable offences under sections 498A/307/323 I.P.C. in connection with Nanoor P.S. Case No. 44/99. Petitioners obtained following order under section 438 Cr. P.C. from a Division Bench of this Court on 16.9.99:- "This is an application under section 438 of the Code of Criminal Procedure for anticipatory bail by the petitioners who apprehend that they may be arrested in connection with Nannor P.S. Case No. 44/99 dated 10.8.99 under section 498A/307/323 of the Indian Penal Code. Having heard the learned Advocate for the petitioner (s) as well as the learned Advocate for the State and on perusal of the case diary, we pass the following order: In the event of the petitioner (s) being arrested in connection with the aforesaid case they will be released on bail subject to the following conditions: (i) that the petitioner (s) shall make themselves available for interrogation by a police officer as and when required, (ii) that the petitioner (s) shall not directly or indirectly make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer, (iii) that the petitioner No.1 Patai Sk., shall meet the I.O. of the concerned police station once a week. This order of anticipatory bail would remain operative for a period of 3 (three) weeks from today subject to the decision of the Supreme Court passed in the case of K.L. Verma vs. State and Anr., S.L.P: (Crl.) Nos. 3278 and 3278A of 1996. If any application for bail is hereafter made by the petitioner (s) before an appropriate court under sections 437/439 Cr. P.C. the same shall be disposed of by such court in accordance with law." 2. Soon after that petitioners surrendered before S.D.J.M., Bolpur on 1.10.99 with a prayer for bail. S.D.J.M. by his order dated 1.10.99 rejected the said prayer for bail. They were, however, not taken into custody and were given 15 days time to obtain necessary order of bail from 'the upper forum." Operative part of the said order reads as under:- ".....In such view of the matter, the prayer for regular bail of the accused is rejected. S.D.J.M. by his order dated 1.10.99 rejected the said prayer for bail. They were, however, not taken into custody and were given 15 days time to obtain necessary order of bail from 'the upper forum." Operative part of the said order reads as under:- ".....In such view of the matter, the prayer for regular bail of the accused is rejected. They are however not taken into custody in the light of the decision reported in 1997 CLR (Cal.) 346. The accused are given 15 days time to obtain necessary order of bail from the upper forum." Said 15 days' time was further extended up to 4.12.99 on a prayer of the petitioners. In these circumstances, petitioners have filed the instant application being C.R.M. 4276/99 for regular bail under section 439 Cr. P.C. in this Court. None of the petitioners are in custody as recorded by the S.D.J.M in his aforesaid order dated 16.9.99. Now the question we are called upon to decide is whether an application for regular bail under section 439 Cr. P.C. is maintainable at instance of a person who is not in custody? 3. Petitioners have approached this Court in this application under section 439 Cr. P.C. for regular bail though they are not in custody. This is an application under section 439 Cr. P.C. 4. It is undoubtedly true that the Division Bench granted anticipatory bail to the petitioners and directed that such order of anticipatory bail would remain operative for three weeks from the date on which such order was passed subject to the decision of the Supreme Court passed in the case of K.L. Verma vs. State, S.L.P. (Crl.) Nos. 3278 and 3278A of 1996. Division Bench further directed that if any application for bail is made by the petitioners thereafter before an appropriate court under section 437/439 Cr. P.C, same should be disposed of by such Court in accordance with law. 5. 3278 and 3278A of 1996. Division Bench further directed that if any application for bail is made by the petitioners thereafter before an appropriate court under section 437/439 Cr. P.C, same should be disposed of by such Court in accordance with law. 5. It is also true that the Apex Court in the case of K.L. Verma in the last sentence of paragraph 4 thereof issued the following direction:- "As far as the order of 9.10.96 is concerned, since it proceeds on a misreading of Salouddin's case, we modify the order by directing that the anticipatory bail will enure till the regular court decides the question of grant of bail and for a week thereafter, so that if the regular Court refuses bail, the accused person can, if so advised, move the higher Court." 6. In view of the aforesaid directions of the Supreme Court given in K.L. Verma's case and in view of the directions issued by the High Court, the learned Magistrate while rejecting the prayer of the petitioners for regular bail granted 15 days' time to the petitioners for obtaining necessary bail order from the "upper forum". While passing this order Magistrate declined to take the petitioners into custody. 7. Admittedly, the petitioners were not taken into custody by any Court or Police Authority. There cannot be any dispute that an application under section 439 (1) of the Code cannot be entertained unless an accused is in custody. Nowhere, in the petitions it has been stated that the petitioners are in custody. Sub-section (1) of section 439 of the Code provides that a High Court or Court of Session may direct that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section. Therefore, unless an accused is in custody, his application for regular bail under section 439 Cr. P.C. cannot be entertained. 8. Now, the question is what is the meaning of the word "custody"? In these circumstances of the present case is it possible to say that the petitioners applied for regular bail before this Court while in custody? In this connection, I may refer to a decision of the Apex Court in Niranjan Singh vs. Prabhakar, AIR 1980 SC 785 . Now, the question is what is the meaning of the word "custody"? In these circumstances of the present case is it possible to say that the petitioners applied for regular bail before this Court while in custody? In this connection, I may refer to a decision of the Apex Court in Niranjan Singh vs. Prabhakar, AIR 1980 SC 785 . Towards the end of the paragraph 6 of the said decision, it was observed by the Apex Court that "we agree that no. person accused of an offence can move the Court for bail under section 439 Cr. P.C. unless he is in custody." This is a statement of law made by the Apex Court. Nothing to the contrary could be brought to our notice and hence the decision of the Apex Court in Niranjan Singh's case is binding upon us. Here in the very same decision while giving somewhat extended meaning to the word custody, Apex Court observed in paragraphs 8 and 9 as follows "8. Custody in the context of section 439 (they are not, be it noted, dealing with anticipatory bail under section 438 Cr. P.C.) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and order of the Court. "9. He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or the police custody. He can be stated to be in judicial custody when he surrenders before the Court and submits to his directions......but for the fact that in the instant case the accused made up for it by surrender before the Sessions Court. Thus, the Sessions Court acquired jurisdiction to consider the bail application." 9. Therefore, as per the extended meaning given to the word custody in the aforesaid decision of the Apex Court in the context of section 439 Cr. P.C., the word custody may also mean physical control or at least physical presence of the accused in Court coupled with submission to the jurisdiction and order of the Court. Therefore, mere submission to the jurisdiction or orders of the Court is not enough to constitute custody. Accused must surrender to physical control of the Court and he must remain physically present before the Court apart from his submission to the jurisdiction and order of the Court. Therefore, mere submission to the jurisdiction or orders of the Court is not enough to constitute custody. Accused must surrender to physical control of the Court and he must remain physically present before the Court apart from his submission to the jurisdiction and order of the Court. In the absence of such circumstances, it is not possible to hold that the accused is in custody. The instant applications before us do not contain even a whisper that the accused petitioners physically surrendered before this Court so as to enable this Court to invoke its jurisdiction under section 439 Cr.P.C. That apart it is not adviseable nor it is possible under law for this Court to take an accused into custody upon his surrender before this court for various reasons. It is, therefore, evident that even this extended meaning of the word custody does not cover the case of the petitioner in the circumstances of the case. 10. From K.L. Verma's case the relevant observations of the Apex Court, as already quoted above, what appears is that the order of anticipatory bail would continue to be operative till the regular court decides the question of grant of bail and for a further week thereafter so that if the regular court refuses bail, accused person, if so advised, may move the Higher Court. Therefore, Supreme Court clearly did not hold in the above quoted observations that in similar circumstances an accused has to move the Higher Court for bail under section 439 Cr. P.C. even though he is not in custody. Only reasonable interpretation of the aforesaid observation of the Apex Court seems to be that accused has to move the Higher Court again for anticipatory bail under section 438 Cr.P.C. within the stipulated period after the regular court refuses to grant him bail and gives him time to do so. Any other interpretation will be inconsistent with the provisions of section 439 Cr. P.C. and the interpretation given by the Apex Court to the word custody in the case of Niranjan Singh. 11. Therefore, unless a person accused of an offence is in custody, he cannot be directed by any Court to be released on bail under section 439 (1). Any other interpretation will be inconsistent with the provisions of section 439 Cr. P.C. and the interpretation given by the Apex Court to the word custody in the case of Niranjan Singh. 11. Therefore, unless a person accused of an offence is in custody, he cannot be directed by any Court to be released on bail under section 439 (1). In the instant case, though the petitioners are accused of some offences, yet they are not in custody and hence the instance application under section 439 (1) for a direction to release them on bail is clearly not maintainable. Towards the end of paragraph 7 in Niranjan Singh's case, Apex Court observed that "We agree that no person accused of an offence can move the Court for bail under section 439, unless he is in custody." This is a statement of law and it is binding upon us. Nothing has been decided by the Apex Court in the case of K.L. Verma or in any other case which can be said to have diluted the aforesaid statement of law made by the Apex Court in Niranjan Singh's case. Even the extended meaning given to the word custody by the Apex Court in the aforesaid case does not cover the case of the petitioners in the circumstances. Similar is the view expressed by the Supreme Court in Gurbax Singh's case. 12. Direction of the Division Bench of this Court that if any application for bail is thereafter made by the petitioners before an appropriate court under sections 437/439 Cr.P.C., same shall be disposed of by such Court in accordance with law does not contain any such observation that the application of the petitioners under section 439 Cr. P.C. is maintainable even when they are not in custody. Of course, when they are in custody their application for bail has to be filed either under section 437 or under section 439 Cr. P.C. That apart in view of the decisions of the Apex Court in Niranjan Singh's case, and in view bf absence of any such direction by the Apex Court in the case of K.L. Verma that in similar circumstances an application of an accused for regular bail should be made under section 439 Cr. P.C. That apart in view of the decisions of the Apex Court in Niranjan Singh's case, and in view bf absence of any such direction by the Apex Court in the case of K.L. Verma that in similar circumstances an application of an accused for regular bail should be made under section 439 Cr. P.C., I am constrained to hold that we cannot act in a manner which will be totally contrary to the law laid down by the Apex Court in Niranjan Singh's case and express provision of law contained in section 439 Cr. P.C. 13. Learned Counsel for the petitioners further contended that if it is ultimately held by us that no relief can be granted to the petitioners under section 439 of the Code, we should suo motu invoke our revisional or at least inherent jurisdiction to give appropriate relief to the petitioners. Even if we accept the aforesaid contentions of the learned Counsel for the petitioners, only three types orders can be passed, namely, (i) to reject prayer of the petitioners for bail and remand them to custody; (ii) to allow their prayer for bail, either from custody or grant them a relief in form of anticipatory bail or (iii) to quash the order of the Magistrate by which he rejected the prayer of the petitioners for bail. 14. Under the Code, power to remand an accused to custody during investigation has been conferred upon Magistrates only. A bare perusal of sections 167 and 437 of the Code will make it abundantly manifest that such power has been conferred upon Magistrates only. High Court has not been conferred with any such power under the aforesaid provisions to remand an accused to custody. As the High Court has not been vested with any power to remand an accused to custody, this Court cannot have such power to take an accused into custody even if he surrenders. Therefore, when High Court has not been vested with any such power to remand an accused to custody after rejection his prayer for bail as a court of first instance, I wonder how High Court can be said to have requisite jurisdiction to take an accused into custody upon his surrender before it and then allow a prayer for bail by invoking its revisional or inherent jurisdiction? Further, when admittedly accused petitioners are not in custody, it is not understood as to how this court by invoking its inherent or revisional jurisdiction can issue such absurd direction to release the petitioners on bail from custody? Inherent or revisional jurisdiction cannot provide us with magic solution for all problems. Undoubtedly, this Court has power to grant bail to an accused only when he is in custody pursuant to some judicial order passed by any subordinate court. Petitioners have not at all been taken into custody by any court so far, and, therefore, this Court cannot issue any such absurd direction to release them on bail from custody. No purpose can at all be served by merely quashing the order by which prayers of the petitioners for bail were turned down by the learned Magistrate without taking them into custody, unless this Court can grant them bail or can remand petitioners to custody. In case their prayer for bail is rejected, this Court cannot remand them to custody. 15. Section 482 (corresponding to section 561A of the old Code) confers no new powers on a High Court. It merely safeguards all existing inherent powers possessed by a High Court necessary among other purposes to secure ends of justice or to prevent abuse of the process of any court or to give effect to any order under this Code. This section provides that those powers which the court inherently possessed shall be preserved let it be considered that the only powers possessed by the Court are those expressly conferred by the Code and that no inherent power survived the passing of the Code. (See State of U.P. vs. Mohammad Naim, AIR 1964 SC 703 ). It is, therefore, apparent form this that section 482 assumes that the Code is not exhaustive, though it is exhaustive with regard to matters specifically dealt with by it. The section emphasises that the High Court has widest jurisdiction to pass orders to secure the aforesaid purposes• and for those purposes to entertain applications not contemplated by other provisions of the Code. It cannot, therefore, be resorted to if there is a specific provision in the Code for redress of the grievance of the aggrieved party. The section emphasises that the High Court has widest jurisdiction to pass orders to secure the aforesaid purposes• and for those purposes to entertain applications not contemplated by other provisions of the Code. It cannot, therefore, be resorted to if there is a specific provision in the Code for redress of the grievance of the aggrieved party. In this connection I am fully fortified by a catena of decisions of the Apex Court in Modhu Limaye vs. State of Maharashtra, AIR 1978 SC 47 ; Pampathy vs. State of Mysore, AIR 1967 SC 286 ; R.P. Kapoor vs. State of Punjab, AIR 1960 SC 866 ; Palaniappa vs. State of Tamil Nadu, AIR 1977 SC 1323 ; T.R. Hussain vs. M.P. Moudkar, AIR 1958 SC 376 ; Khushi Ram vs. Hashim, AIR 1959 SC 542 ; Janata Dal vs. H.S. Chowdhury, (1992) SCC 305. This has been the consistent view of the Supreme Court in these decisions and large number of other similar decisions that High Court cannot invoke its inherent power even for the purposes set out in section 482 in respect of any matter covered by specific provisions of the Code. 16. Chapter 33 of the Code contains specific provisions for bail and anticipatory bail. Section 389 of the Code contains specific provision to grant bail during pendency of appeal from judgment of conviction and sentence. Similarly, in view of section 401 (1) read with 389, revisional court has been vested with power to grant bail to a convict in a revision application against conviction and sentence. Therefore, all aspects of bail or anticipatory bail have been specifically dealt with by 6pecific provisions of the Code. All matters relating to bail or anticipatory bail are fully covered by the aforesaid provisions of the Code. In those circumstances aforesaid provisions of the Code have exhaustively dealt with every aspect of law relating to bail or anticipatory bail and, therefore, section 482 cannot be resorted to grant any relief like bail or anticipatory bail, whether directly or indirectly. 17. Old Code of criminal procedure did not contain any provision for anticipatory bail. In those circumstances aforesaid provisions of the Code have exhaustively dealt with every aspect of law relating to bail or anticipatory bail and, therefore, section 482 cannot be resorted to grant any relief like bail or anticipatory bail, whether directly or indirectly. 17. Old Code of criminal procedure did not contain any provision for anticipatory bail. Privy Council in Lala Jairam Das vs. King-Emperor, 49 CWN 477 : AIR 1945 PC 94 had an occasion to consider the provisions of Chapter 39 (corresponding to Chapter 33 of the new Code) and section 426 of the old Code and expressed the view that "Chapter 39 of the Code together with section 426 is, and was intended to contain, a complete and exhaustive statement of the powers of High Court in India to grant bail, and excludes the existence of any additional inherent power in a High Court relating to subject of bail." 18. Aforesaid decision of the Privy Council in the case of Lala Jairam Das came to be considered by the Supreme Court in a different context in T.R. Hussain vs. M.P. Moudkar, AIR 1958 SC 376 . In the case of Hussain it was contended that in view of law laid down by the Privy Council in the case of Lala Jairam Das, bail granted under section 496 of the old Code (corresponding to section 436 of the new Code) to a person accused of a bailable offence cannot be cancelled even if the accused misused the liberty granted to him. Logic behind such contention was that it has been laid down by the Privy Council in the case of Lala Jairam Das that Chapter 39 together with section 426 of the old Code was intended to be complete and exhaustive statement of the powers of the High Courts in India to grant bail and excludes the existence of any additional inherent power in a High Court relating to subject of bail. Relying on this decision of the Privy Council, it was contended before the Supreme Court in the case of Hussain that no inherent power is left in the High Courts to cancel bail of a person accused of bailable offence. The Supreme Court after considering the provisions of the Code held that the Code does not contain any such provision dealing with cancellation of bail granted to a person accused of bailable offence. The Supreme Court after considering the provisions of the Code held that the Code does not contain any such provision dealing with cancellation of bail granted to a person accused of bailable offence. Other provisions for cancellation of bail relate to non-bailable offences. Therefore, in an appropriate case High Court can certainly take recourse to its inherent power to cancel the bail granted to a person accused of bailable offence as such a matter is not covered by any provision of the Code. 19. Again in Ratilal Bhanji vs. Asst. Customs Collector, AIR 1967 SC 1639 , the Supreme Court reiterated the same view. In none of the aforesaid two decisions of the Supreme Court, law laid down by Privy Council in the case of Lala Jairam Das has been diluted. In a Full Bench decision of the Lahore High Court in Hidayat Ullah vs. The Crown, AIR 1949 Lahore 77, same view was held that High Court has no such inherent power to grant bail. 20. Therefore, it is now well settled that as the law of bail/anticipatory bail has been exhaustively dealt with by various provisions of the Code, no further additional inherent power has been left in the High Court relating to subject of bail. Under the old Code there was no such provision for anticipatory bail like section 438 of the new Code. Before new Code came into force, there was a divergence of opinion between different High Courts on the question as to whether High Court possessed any power to grant anticipatory bail in exercise of its inherent power as the old Code did not contain any such provision for anticipatory bail. However, majority High Courts expressed the view that under the old Code High Court did not possess any such inherent power to grant any relief in the form of anticipatory bail. In fact Supreme Court in Balchand Jain vs. State of M.P., AIR 1977 SC 366 , observed in paragraph (2) of the report that "There was at one time conflict of decisions amongst different High Courts in India about the power of a Court to grant anticipatory bail. The majority view was that there was no such power in the Court under the old Code of Criminal Procedure...." Now the Code has incorporated express provision for anticipatory bail in section 438. The majority view was that there was no such power in the Court under the old Code of Criminal Procedure...." Now the Code has incorporated express provision for anticipatory bail in section 438. Hence, law relating to anticipatory bail has been completely and exhaustively covered by the new Code and, therefore, under the new Code no further inherent power has been left with the High Court to entertain an application for anticipatory bail. Since subject relating to anticipatory bail has been fully covered by an express provision of the new Code, High Court cannot resort to its inherent power under section 482 to grant any relief in the form of anticipatory bail also. 21. From the aforesaid discussion it will be evident that in exercise of its revisional or inherent jurisdiction, High Court cannot grant anticipatory bail or bail from custody as the subject matter relating to bail or anticipatory bail has been completely and exhaustively dealt with by express provisions of the Code. 22. Further, sections 397 to 402 deal with revisional powers of the High Court and Court of Session. Power to call for the records of any case from the inferior court with a view to satisfying itself as to the legality, correctness or otherwise propriety of any finding, sentence or order or as to the regularity of any proceeding has been conferred on the High Court and the Court of Session by or under section 397. Now, sub-section (1) of section 401 provides that where records of any proceeding has been called for by the High Court or which otherwise comes to its knowledge, it may in its discretion exercise any of the powers conferred on a Court of appeal by, inter alia, section 389. Section 389 deals with suspension of sentence and bail of the convict-revision petitioner during pendency of revision petition against any judgment of conviction and sentence. Therefore, it is evident that so far as bail matter is concerned, a court of revision has been vested with the jurisdiction to exercise the power conferred on a court of appeal by or under section 389 only. Save and except order contemplated under section 389, a court of revision has no further power to grant bail or anticipatory bail. A Court of revision cannot, therefore, exercise the powers conferred upon High Court or Court of Session under section 439 or section 438. 23. Save and except order contemplated under section 389, a court of revision has no further power to grant bail or anticipatory bail. A Court of revision cannot, therefore, exercise the powers conferred upon High Court or Court of Session under section 439 or section 438. 23. Therefore, only relief which the petitioners may ask for in an appropriate application is anticipatory bail. As the petitioners are not in custody, no other relief except anticipatory bail is possible under the circumstances of the case. Successive applications for anticipatory bail are not barred under the statute provided new circumstances emerged in the meantime which may justify second application for the same relief. After the High Court granted anticipatory bail to the petitioners for about three weeks direction the petitioners to surrender before the court of the ld. Magistrate with a prayer for regular bail, petitioners surrendered before the ld. Magistrate and their prayer for bail was turned down. However, they were given a short period to obtain necessary order from Higher Court. While passing such order, ld. Magistrate did not take them into custody. These facts are certainly new circumstances which developed since the Division Bench of this Court granted anticipatory bail to the petitioners for a short period. In view of emergence of these new circumstances, second application for anticipatory bail at the instance of the petitioners is certainly not barred under any provision of the statute. 24. Revisional or inherent jurisdiction of this Court cannot be invoked to grant any relief to the petitioners as the only relief which could possibly be granted to the petitioners is in the form of anticipatory bail. I have already discussed above that in exercise of inherent or revisional jurisdiction this Court has no such power to grant anticipatory bail. 25. In view of the aforesaid position of law and in view of the peculiar facts and circumstances of the case before us, petitions must be dismissed and accordingly same is dismissed. Debiprasad Sengupta, J. : After the enforcement of the new Criminal Procedure Code certain provisions of law which were alien to the Code of Criminal Procedure in the past, came to be considered and interpreted by the Hon'ble Supreme Court and section 438 was one of them. A Constitution Bench of the Hon'ble Supreme Court headed by the then the Hon'ble Chief Justice of India Mr. A Constitution Bench of the Hon'ble Supreme Court headed by the then the Hon'ble Chief Justice of India Mr. Justice Chandrachud explained the scope, ambit and application of section 438 of the Code of Criminal Procedure and the decision rendered to that effect in the case of Gurbax Singh Sibbia vs. State of Punjab is reported in AIR 1980 SC 1632 . The judgment of the Hon'ble Court indicates that there had been deliberation before the Hon'ble Court with regard to, amongst other, the aspect of limitation point of time on the operation of an order under section 438 of the Code of Criminal Procedure. The view expressed by the Hon'ble Court adumbrated in paragraph 38 of the judgment in Gurbax Singh Sibbia (supra) is to the following effects:- "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 short period until after the filing of an F.I.R. 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 F.I.R. as aforesaid. But this need not be followed as a invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time." Pertinent in this context is to refer to paragraph 35 of the judgment wherein it was ruled by Their Lordships, in explaining the fourth condition in the application of section 438 of the Code of Criminal Procedure to the effect that, "Fourthly, anticipatory bail can be granted even after a First Information Report is filed so long the applicant has not been arrested." The ratio decidendi emerging from the decision of the Hon'ble Supreme Court in Gurbax Singh Sibbia (supra) held the ground for long length of time till somewhat contrary view was expressed by the Hon'ble Supreme Court in the case of Salauddin Abul Smad Sk. vs. State of Maharashtra, reported in 1996 Calcutta Criminal Law Reporter S.C. 130. vs. State of Maharashtra, reported in 1996 Calcutta Criminal Law Reporter S.C. 130. A Bench of two Hon'ble Judges of the Hon'ble Supreme Court in construing section 438 of the Code of Criminal Procedure held as follows:- "Anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the regular court, which is to try the offender, is sought to be by passed 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 realised 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 nautre 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." "........It should be realised that an order of anticipatory bail could even be obtained in cases of a serious nature as for example murder and, therefore, it is essential that the duration of that order should be limited and ordinarily the court granting anticipatory bail should not substitute itself for the original court which is expected to deal with the offence. It is that court which has then to consider whether, having regard to the material placed before it, the accused is entitled to bail." 2. Noticeable feature in the judgment of Salauddin (supra) is that the decision in Gurbax Singh Sibbia (supra) was not cited before the Hon'ble Bench. As such, there was no occasion to consider the view expressed by the Constitution Bench of the Supreme Court in its earlier decision. 3. In the wake of Salauddin's case (supra) came the other decision of the Hon'ble Supreme Court in the case of K.L. Verma vs. State and Anr., reported in 1997 Cal. Cr. L.R. (SC) 88. As such, there was no occasion to consider the view expressed by the Constitution Bench of the Supreme Court in its earlier decision. 3. In the wake of Salauddin's case (supra) came the other decision of the Hon'ble Supreme Court in the case of K.L. Verma vs. State and Anr., reported in 1997 Cal. Cr. L.R. (SC) 88. It appears that two special leave petitions (Criminal) numbering 3278 and 3278A of 1996 were taken by a Bench of two Hon'ble Judges of the Hon'ble Supreme Court consisting of the then Hon'ble Chief Justice of India Mr. Justice A.M. Ahamadi and Mr. Justice J.S. Verma. The situation which led to the filing of the Special Leave Petitions and the consideration of those Special Leave Petitions' by the Hon'ble Bench of the Hon'ble Supreme Court is summarised in the first two paragraphs of the judgment. 4. Their Lordships took notice of the fact that in passing the order by a learned Single Judge of Delhi High Court, the decision of the Supreme Court in Salauddin's case (supra) was relied upon. In clarifying the directions contained in the decision in Salauddins's case (supra) the following observations were made in the case of K.L. Verma vs. State (supra) in paragraph 3 thereof:- "By this, what the court desired to convey was that an order of anticipatory bail does not enure till the end of trial but it must be of limited duration as the regular Court cannot be by-passed. 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 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 to enable the accused persons to move the higher Court, if they so desire. This decision was not intended to convey that as soon as the accused persons are produced before the regular Court the anticipatory bail ends even if the Court is yet to decide the question of bail on merits. This decision was not intended to convey that as soon as the accused persons are produced before the regular Court the anticipatory bail ends even if the Court is yet to decide the question of bail on merits. The decision in Salauddins's case, has to be so understood." "In the above view we think it appropriate to direct that till the High Court decides the question of sanction under section 197 of the Code the further proceedings in the trial Court shall stand stayed. The High Court should dispose of the application as early as possible on or soon after the returnable date i.e. 1st November, 1996. As far as the order of 9th October, 1996 is concerned, since it proceeds on a misreading of Salauddin's case, we modify the order by directing that the anticipatory bail will enure till the regular Court decides the question of grant of bail and for a week thereafter, so that if the regular Court refuses bail, the accused persons can, if so advised, move the higher Court." 5. As in the case of Salauddin (supra) so also in the case of K.L. Verma (supra) the decision of the Constitution Bench in Gurbax Singh Sibbia (supra) was neither cited nor referred to. In the case of K.L. Verma vs. State and Anr. (supra) there is a repeated observation in paragraphs 3 and 4 thereof that in the event of regular Court refusing to grant regular bail to an accused who has previously obtained an order of anticipatory bail the person concerned be allowed a few days' time to move higher court. Obviously this time is to be granted by the regular court which refused to grant bail to the accused or the person concerned. There is no indication in the judgment in K.L. Verma's case as to what will be the procedure to be adopted by the person concerned for moving the higher court. The course of action has been left open. It had been pointed out in a Bench decision of this Hon'ble Court in the case of Smt. Bijali Shat & Ors. vs. State of West Bengal with reference to the decision in the case of Gurbax Singh reported in 1999 C. Cr. The course of action has been left open. It had been pointed out in a Bench decision of this Hon'ble Court in the case of Smt. Bijali Shat & Ors. vs. State of West Bengal with reference to the decision in the case of Gurbax Singh reported in 1999 C. Cr. L. R. (Calcutta) 249 that, "decision of the Constitution Bench of the Supreme Court has not yet been over-ruled by any larger Bench of the same court and hence, nothing to the contrary is binding upon us. No other decision/observation rendered by any similar Bench of the Apex Court or by this Court to the contrary can have binding effect on us". On the premises as aforesaid, the Division Bench of this Hon'ble Court in the case of Bijali Shat & Ors. vs. State of West Bengal (supra) refused to fix any period for the duration of the order of anticipatory bail. It appears that the Bench decision in Bijali Shat (supra) refers to the decision of the Hon'ble Supreme Court in the cases of Salauddin and K.L. Verma (supra) and proceeded to hold that ratio decidendi in the case of Gurbax Singh Sibbia vs. State of Punjab (supra) had remained unaffected by the later decisions in the cases of Salauddin and K.L. Verma (supra). Unfortunately, contrary view had also been expressed in another Bench of this Court decision in the case of Asit Ghosh vs. State of West Bengal reported in 1997 C. Cr. L.R. (Calcutta) 32. The Division Bench consisted of the Hon'ble Justice Samir Kumar Mookherjee and the Hon'ble Justice R. Bhattacharyya (as Their Lordships then were). In the case of Asit Ghosh (supra) it was debated at the Bar whether the view expressed in Salauddin's case (supra) would be applicable and has any binding force in view of the larger Bench decision in the case of Gurbax Singh vs. State of Punjab (supra), wherein it was ruled that normally no outer limit should be fixed on the life time of anticipatory bail. The Division Bench of this Hon'ble Court on consideration of various decisions including that of Salauddin and Gurbax held to the effect that "therefore, there is no scope for argument that the imposition of outer limit is de hors the statutory provisions. The philosophy behind the fixation of outer limit becomes obvious, if we read through section 438 (2) of the Cr. The philosophy behind the fixation of outer limit becomes obvious, if we read through section 438 (2) of the Cr. P.C. where the legislature in its ample wisdom has incorporated the expression, "the High Court or the Court of Session may include such conditions in such direction in the light of the facts of a particular case as it may think fit in addition to conditions 438 (2) (i) (ii) (iii) (iv) of the Cr. P.C. "The fixation of the outer limit may, therefore, come within the fold of, "such conditions". Thus the fixation of outer limit in some form or the other for the foregoing reason is not impermissible. 6. It also appears that in Asit Ghosh's case Their Lordships quoted with emphasis a sentence appearing in paragraph 36 of the judgment of the Hon'ble Supreme Court in Gurbax Singh's case to the effect that, "the applicant may in such cases be directed to obtain an order of bail under sections 437 or 439 of the Code within II reasonable short period after the filing of the First Information Report as aforesaid". The attention of the Division Bench which heard and disposed of Asit Ghosh's case, does not appear to have been drawn to the fourth condition enumerated in the case of Gurbax Singh vs. State of Punjab appearing at paragraph 35 thereof indicating that, "anticipatory bail can be granted even after the First Information Report is filed as long as the applicant has not been arrested." 7. Be that as it may, it appears that the view expressed by the Division Bench of this court in Asit Ghosh's case was not brought to the notice of the Hon'ble Bench which heard and disposed of the case of Smt. Bijali Shat vs. State of West Bengal (supra). The another aspect which is worth taking note of is that the decision in Asit Ghosh's case was rendered before the Hon'ble Supreme Court rendered its judgment in K.L. Verma's case clarifying the directions earlier given in the case of Salauddin (supra). 8. The another aspect which is worth taking note of is that the decision in Asit Ghosh's case was rendered before the Hon'ble Supreme Court rendered its judgment in K.L. Verma's case clarifying the directions earlier given in the case of Salauddin (supra). 8. There is another judgment of this Court which refers to the decisions of the Hon'ble Supreme Court both in the cases of Salauddin and K.L. Verma and also expresses its view on rejection of prayer for regular bail by a regular court after the person concerned had been granted anticipatory bail under section 438 of the Code of Criminal Procedure. The said case namely, Sudarshan Bose vs. State of West Bengal was heard and decided by S.K. Tiwari, J. (as His Lordship then was) and reported in 1997 C.Cr.L.R. (Calcutta) 346. The fact situation in Sudarshan Bose's case indicates that the person concerned was granted anticipatory bail by this Court and it was indicated in the said order that the anticipatory bail so granted is subject to the law laid down by the Apex Court in Salauddin's case 1996 C.Cr. L. R. (SC) 130 and K.L. Verma's case 1997 Cal. Cr. L.R. (SC) 88. After the said petitioner (Sudarshan Bose) surrendered before the learned Magistrate and prayed for regular bail, it was refused on the ground that prima facie case under section 304 of the Indian Penal Code is made out. The person affected by the order of the learned Magistrate then moved revisional application in this Hon'ble Court and in explaining both the decision of the Hon'ble Supreme Court in the case of Salauddin and K.L. Verma, it was held by the learned Single Judge that after the investigation has reached in an advance stage and their is enough material available in the case diary, the trail court should have opportunity to reconsider whether the accused deserves bail during the trial. In such a case the learned Magistrate/Sessions Court considering the application under section 437 or 439 of the Code of Criminal Procedure must pass a reasoned order specifying the ground for rejection of the bail application. It was held by the learned Single Judge that "the order must discuss the materials which came to the light after passing of an order under section 438 (1) of the Code of Criminal Procedure. It was held by the learned Single Judge that "the order must discuss the materials which came to the light after passing of an order under section 438 (1) of the Code of Criminal Procedure. If all such materials were available before the Hon'ble High Court when it considered the bail application, the learned lower court would not be justified in rejecting the bail application on the selfsame materials." 9. It has been indicated hereinbefore that the course of action to be perused by the person whose prayer for regular bail had been refused by the regular court, had not been indicated by the Apex Court in K.L. Verma's case. Yet, in this Court a practice had grown up to file regular bail application under section 439 of the Code of Criminal Procedure for grant of bail. 10. The word "custody" as indicated in the judgment of my learned brother Justice S. Barman Roy, came to be considered by the Hon'ble Supreme Court in a decision reported in AIR 1980 SC 785 (Niranjan Singh vs. Prabhakar) and physical appearance of an accused in court on surrender submitting to the jurisdiction of the court had been ruled as "custody" within the meaning of section 439 of the Code of Criminal Procedure. My Lord Justice Barman Roy has pointed out with reference to paragraph 6 of the judgment in Niranjan Singh's case that as per the view of the Apex Court none can move the court for bail under section 439 Cr. P.C. unless he is in custody. The interpretation of the word "custody" in the abovementioned judgment is indeed extended and one has to agree that the demand of section 439 of the Code must be met before bail application can be considered, i.e., applicant must be in custody. But here a complex situation has arisen since the applicant is at large not due to any dubious method or means adopted by him but on the strength of an order judicially passed by the learned Magistrate who refused to enlarge him on bail and then in compliance with the law enunciated in K.L. Verma's case, extended the period of anticipatory bail so as to enable the accused to move the superior court. Can we find any fault with the accused for moving this court when he is at large? To be just and fair the answer would be in the negative. Can we find any fault with the accused for moving this court when he is at large? To be just and fair the answer would be in the negative. Faced with this situation one should endeavour to find out a reasonable solution which, if achieved, would not cause any violence to the mandatory condition engrafted in section 439 Cr. P.C. My Lord Justice Barman Roy has observed in his judgment that only reasonable interpretation of the observations made by the Hon'ble Apex Court in K.L. Verma's case about grant of time to an accused after extending the period of anticipatory bail to move the Superior Court, is that the accused has to move the Superior Court again under section 438 of the Code of Criminal Procedure within the stipulated period after the rejection of the prayer for regular bail. With due respect and reverence to My Lord it is difficult to agree with the interpretation so made. The reasons for humble disagreement are as follows: Firstly, to hold that an accused or a person who had once obtained an order under section 438 Cr. P. Code from the High Court or the Court of Sessions but denied regular bail by Court below, has to move another application under section 438 Cr. P.C. for the grant of relief which he had once obtained, would amount to introduction of a new procedure which is neither contemplated under section 438 Cr. P.C. nor any such procedure appears to have been conceived of by the Apex Court through interpretative process of law either in the case of Gurbax Singh or in the case of K.L. Verma. Secondly, such procedure would not be in consequence of law adumbrated by the Hon'ble Supreme Court in the case of Gurbax Singh which does not in any way indicate the moving of the second application under section 438 Cr. P.C. under the circumstances mentioned by My Lord nor does such procedure conform to the legislative mandate engrafted under section 438 (3) of the Code of Criminal Procedure, which provides that as and when cognizance is taken of the offence/offences by a Magistrate after the investigation and he decides to issue warrant of arrest at the first instance against the person concerned, it would be a bailable warrant of arrest. Such provision unmistakably applies the law that once anticipatory bail is granted it continues, unless cancelled subsequently in accordance with law by the court granting it or by any superior court and ought to be given effect to in compliance with the order passed under section 438 (1) Cr. P. Code. It may be pointed out in this connection that the judgment of the Hon'ble Supreme Court in Salauddin's case and that in K.L. Verma's case primarily relate to the duration of the order of anticipatory bail or outer limit thereof without, it is stated with great respect, and reference to section 438 (3) Cr. P. Code so far it is related to Magisterial obligation as discussed above. Thirdly, on how many occasions the courts referred to in section 438 (1) Cr. P.C. are to consider and dispose of application for anticipatory bail? Are they or either of them is to consider such application from stage to stage on the logic that once regular bail is denied the apprehension of arrest revives? Are the courts or either of them is statutorily required to review the order of grant of anticipatory bail at one stage of a case on the basis of refusal to grant regular bail? Answer to all these questions should be an emphatic "no" since none can read a procedure in a statute or in any provision of a statute which the legislature did not incorporate. 11. It is indeed acceptable that section 439 Cr. P.C. does not permit a free man or an enlarged person to move an application for release from "custody", But the question, in the facts and circumstances of these cases, remains as to what remedy is available to a person whose prayer for regular bail has been refused by the court below despite grant of anticipatory bail though for a limited duration. 12. It admits no controversy that while deciding the question of bail a court acts judicially and any order passed therein is a judicial order. 12. It admits no controversy that while deciding the question of bail a court acts judicially and any order passed therein is a judicial order. On the pronouncement of law in Kamalapati Trivedi's case ( AIR 1979 SC 777 ) it can be safely asserted that rejection of a regular bail is a judicial order passed in a judicial proceeding and thus amenable to the revisional jurisdiction of the Superior Court (High Court or Court of Sessions) or inherent jurisdiction under section 482 of the Code (in respect of High Court only). The Court of revision can take notice of the earlier order of anticipatory bail granted to the revisionist and stay the operation of the order rejecting prayer for regular bail. So far the High Court is concerned its exercise of power under section 482 Cr. P. Code is far wide and is clearly magnified by the expression "........to make such orders as may be necessary to give effect to any order under this Code". Indisputably High Court has the authority to give effect to an order passed under section 438 of the Code of Criminal Procedure in an application under section 482 Cr. P.C. if the case so requires, while examining the legality or justifiability of an order whereby regular bail has been refused by a court subordinate to it. In any event the jurisdiction/authority of the High Court under section 482 Cr. P.C. is always available to a person to undo the wrong committed to him on refusal of his prayer for bail. 13. The application before this court is undoubtedly under section 439 Cr. P.C. for grant of bail without the applicants/petitioners being in custody and regard being had to the unavoidable legal requirements, the applications cannot be treated as applications for bail. But the case can not and should not end here and this court should not be oblivious of the oft-quoted legal principle that if a court has the required jurisdiction or authority to do a thing judicially it would proceed to do so notwithstanding wrong quoting of section of law by the applicant in his application. The authority of a court of law is created by the statute and nomenclature of a petition does neither confer nor take away the jurisdiction of a court of law if it is vested with such jurisdiction by the statute. 14. The authority of a court of law is created by the statute and nomenclature of a petition does neither confer nor take away the jurisdiction of a court of law if it is vested with such jurisdiction by the statute. 14. In view of the discussions made above the present application which is evidently under section 439 of the Code of Criminal Procedure, should and ought to be treated as application under section 482 of the Code of Criminal Procedure and disposed of on merits. 15. It is made clear, to avoid misunderstanding, that the discussions made hereinabove about the larger bench decision in Gurbax Singh's case and the subsequent smaller bench decisions in the cases of Salauddin and K.L. Verma are not meant for indicating the constitutional supremacy under Article 141 of the Constitution of India of the former decision over the later decisions, but merely to point out the views expressed by the Hon'ble Supreme Court with regard to section 438 of the Code of Criminal Procedure in these decisions rendered at different points of time. 16. In my considered opinion the present application under section 439 Cr. P.C. may be treated as application under section 482 of the Code of Criminal Procedure and accordingly it is taken up for disposal. I have carefully gone through the order passed by the learned Sub-Divisional Judicial Magistrate, Bolpur and in my view the order suffers from illegality. The judgment of the Apex Court in providing an outer limit for the operation of an order passed under section 438 (1) Cr. P.C. is to prevent the abuse of the provision of anticipatory bail in serious offences. When anticipatory bail applications are moved at the initial stage of investigation the entire material may not be available before the concerned court granting anticipatory bail. But after the investigation has proceeded to a considerable extent and there are enough material available in the case diary, the Magistrate should take up the bail application under section 437/439 Cr. P.C. and should pass a reasoned order indicating that the Magistrate/Sessions Judge has duly applied his mind to the new materials which came to light after the passing of an order under section 438 (1) Cr. P.C. The learned Magistrate will not be justified in rejecting the prayer for bail on the self-same materials on which anticipatory bail was granted to the petitioners. 17. P.C. The learned Magistrate will not be justified in rejecting the prayer for bail on the self-same materials on which anticipatory bail was granted to the petitioners. 17. From the impugned order rejecting the prayer for bail it appears that the learned Magistrate has not at all discussed what are the new materials collected by the investigating agency, justifying the rejection of bail, after the petitioners were granted anticipatory bail by this court. The order passed by the learned Magistrate cannot be said to be a reasoned order. He has simply rejected the application for bail on the ground that such prayer was opposed by the learned A.P.P. and that the allegations against the petitioners are of serious nature. 18. In view of the discussions made above I allow the application and direct the learned Magistrate to consider the bail application of the petitioners in the light of the observations made above. I also direct that the petitioners in this application shall not be taken into custody until such bail application is disposed of by the learned Magistrate. Later In view of our difference of opinion as to whether any relief can be granted to the petitioners in the instant application, this case is required to be referred to a larger Bench of this Court, as the Hon'ble Chief Justice may think fit and proper for a final and authoritative decision on the complicated questions of law involved in this case. There is no difference of opinion between us on the question that neither regular bail nor anticipatory bail can be granted to the petitioners in the instant application under section 439 of the Code for the reasons stated in our orders. But difference of opinion exists on the following questions:- (i) Whether second application for anticipatory bail under section 438 Cr. P.C. is totally barred even if new circumstances develop after rejection or disposal of an earlier application for anticipatory bail? But difference of opinion exists on the following questions:- (i) Whether second application for anticipatory bail under section 438 Cr. P.C. is totally barred even if new circumstances develop after rejection or disposal of an earlier application for anticipatory bail? (ii) Whether petitioners can file a fresh application under section 438 of the Code and whether same will be maintainable in the circumstances of the case and in view of the following observations/directions of the Apex Court in K.L. Verma's case (supra): "As far as the order of 9.10.96 is concerned, since it proceeds on a misreading of Saiauddin's case, we modify the order by directing that anticipatory bail will enure till the regular Court decides the question of grant of bail and for a week thereafter, so that if the regular Court refuses bail, the accused person can, if so advised, move the higher Court?" (iii) What is the exact nature of the remedy available to the petitioners in the circumstances of the case and in view of the last direction given by the Apex Court in the above quoted observations, namely, '.........the accused person can, if so advised, move the higher Court'? What was exact remedy contemplated by the Supreme Court in the above quoted observations? (iv) Whether it was the intention of the Supreme Court in the above quoted observations that in the similar circumstances of the instant case, High Court should invoke its inherent/revisional jurisdiction and examine the correctness of the order of the Magistrate refusing bail to the petitioners on merit irrespective of whether such order discloses good reasons therefor or not and may in an appropriate case remand back the case again to the Magistrate for consideration of the bail prayer of the petitioners afresh? Further can we reject similar application on merit if it is found that order by which Magistrate rejected the prayer for bail discloses good reasons therefor particularly when it is our opinion that we cannot grant bail or anticipatory bail under the circumstances of the case? (v) Whether this petition is at all maintainable or whether some relief can still be granted to the petitioners by suo motu invoking our inherent/revisional jurisdiction? (v) Whether this petition is at all maintainable or whether some relief can still be granted to the petitioners by suo motu invoking our inherent/revisional jurisdiction? As the difference of opinion exists between us on the aforesaid question of law, let this matter be placed before Hon'ble Chief Justice of this Court for appropriate assignment to a larger Bench of this Court for a final decision on the aforesaid vexed questions of law. After we passed the aforesaid orders, the ld. Counsel for the petitioners craves leave to communicate this order to the concerned Magistrate. If they want to communicate this order to the ld. Magistrate this Court cannot prevent them to do so. Let xerox certified copy of this order be given to the ld. Counsel for both sides in course of the day. S. Barman Ray, J. D.P. Sengupta, J. Matter referred to a laeger Bench for decision on the points of reference in view of difference of opinion between their Lordships of the Division Bench.