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Madhya Pradesh High Court · body

2005 DIGILAW 882 (MP)

BRIJESH GARG v. STATE OF MADHYA PRADESH

2005-08-18

S.K.KULSHRESTHA, S.L.JAIN

body2005
Judgment ( 1. ) EXPRESSING the view that the issues involved appear to be unsettled and should get the finality not only for the benefit of the parties but also for the benefit of subordinate Courts, the learned Single Judge referred following questions to be adjudicated by a Larger Bench and that is how the matter has been placed before us:- (i) Whether anticipatory bail order should be for a limited duration or the normal rule should be not to limit the operation of the order ? (ii) Whether the protective umbrella granted under the anticipatory bail order can be claimed by the petitioner in case where his application for regular bail has been rejected by the Court of Sessions and in such a situation whether his application under Section 439 of the Code of Criminal procedure, 1973 would be maintainable? (iii) Where the petitioner who has been enlarged on anticipatory bail for a limited duration and whose application under section 439 of the code is rejected by the Sessions Court, but at the time of consideration of his application, either he was not present before the Court or he moved out of the custody of the Court, whether his application would be maintainable under Section 439 of the Code before the high Court ? ( 2. ) THE brief facts of the case lying in a narrow compass and relevant to the decision of this case are that applicant Vijay Garg @ Poda had filed an application for grant of anticipatory bail under Section 438 of the code which was allowed by a learned Single Judge vide order dated 5-5-05, passed in miscellaneous Criminal Case No. 910/05 in the following terms:- "this order shall remain in force for a period of 60 days and during this period, if the applicant so desires, may surrender and file an application for regular bail before the competent Court, which shall be considered by the Court, in accordance with law. " Thereafter, the applicant filed an application before Sessions Court under Section 439 of the Code and the same was rejected by Special Judge, satna vide order dated 23-6-05. The learned Special Judge also observed that since the order dated 5-5-05, passed by the High Court was for a period of 60 days, and period of 60 days had not expired, the accused was not taken into custody. ( 3. The learned Special Judge also observed that since the order dated 5-5-05, passed by the High Court was for a period of 60 days, and period of 60 days had not expired, the accused was not taken into custody. ( 3. ) THE Counsel for the applicant submitted before the Special Judge that a period of 15 days may be granted to him to obtain the bail order from the high Court. Accordingly, the Special Judge granted 15 days time to obtain the orders from the High Court. ( 4. ) THEREUPON, applicant filed an application before this Court under section 439 of the Code of Criminal Procedure, 1973 (henceforth, the Code) for grant of bail which was registered as M. Cr. C. No. 4984/2005. The matter was heard by the learned Single Judge. The Counsel for the applicant relying on gurubaksh Singh Sibbia Vs. State of Punjab, AIR 1980 SC 1632 , contended that it was not always necessary to pass an order of anticipatory bail for limited period and normally the anticipatory bail order should remain effective till the disposal of the case. The learned Counsel also submitted that the judgment rendered in salauddin Abdulsamad Shaikh Vs. State of Maharashtra, (1996) 1 SCC 667 , is either per incuriam or is not binding on Courts as the judgment in Gurubaksh singhs Case (Supra) was delivered by five Judge Bench, whereas the judgment in Salauddin Abdulsamad Shaikh (Supra) was rendered by three Judge Bench, in which the earlier judgment in Gurbaksh Singhs case (Supra) was not referred. ( 5. ) IT was also contended before the learned Single Judge that the division Bench of this Court in Ramsewak Jeewanlal and Others Vs. State of m. P. , 1980 MPLJ 100 , has clearly laid down that the bail granted under Section 438 of the Code will be valid and operative for those offenses only for which the bail has been granted which would last till the conclusion of the trial, unless it is cancelled under Section 437 (5) of the Code, if it is so necessary to do. ( 6. ) THE Judgments of this Court rendered in Kalachand Patel Vs. State of M. P. , 1998 (II) MPWN 120 and Vinod Kumar Vs. State of M. P. 1998 (2) MPLJ 689 were cited before the learned Single Judge. In Vinod Kumars Case (Supra)this Court held thus :- ". ( 6. ) THE Judgments of this Court rendered in Kalachand Patel Vs. State of M. P. , 1998 (II) MPWN 120 and Vinod Kumar Vs. State of M. P. 1998 (2) MPLJ 689 were cited before the learned Single Judge. In Vinod Kumars Case (Supra)this Court held thus :- ". . . . Thus, it is lucidly clear that while an accused remaining under the protective umbrella of the anticipatory bail order appears before the competent Court and moves for regular bail, it would be deemed that he is in custody and his bail application can be considered on merits. Even if his application for grant of regular bail is rejected at the Court of first instance he can move the higher court under Section 439 of the Code and he would be deemed to be in custody if the protective order passed under Section 438 of the Code is in continuance. " ( 7. ) LEARNED Single Judge considered two latest judgments of this Court passed in M. Cr. C. Nos. 3184/05 (Sunil Gupta Vs. State of M. P.) and 3584/05 (Takeshwar Sahu Vs. State of M. P.) = 2005 (3) M. P. H. T. 272, wherein contrary view was taken and it was held by the learned Single Judge that where the order of anticipatory bail was passed for a limited period and if the applicant is not granted regular bail and he is not physically in custody or moved out of the custody, his bail application would not be maintainable before the High Court under Section 439 of the Code. ( 8. ) TO appreciate the rival submissions put forth, it is appropriate to refer to the provisions which are relevant. Section 438 of the Code provides for the issuance of direction for grant of bail to a person who apprehends arrest. It reads thus:-438. Direction for grant of bail to person apprehending arrest.- (1) When any person has reason to believe that he may be arrested on an 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 Section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. (2) When the High Court or the Court of Session makes a 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 think fit, including- (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly,make any inducement, threat or promise 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) a condition that the person shall not leave India without the previous permission of the Court; (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 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 custody 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 instance against that person, he shall issue a bailable warrant in conformity with the direction of the court under sub-section (1 ). Section 439 of the Code reads thus:-439. Section 439 of the Code reads thus:-439. Special powers of High Court or Court of Session regarding bail.- (1) A High Court or Court of Session may direct- (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub- section; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified : provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. Section 437 of the Code reads thus:-437. (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. Section 437 of the Code reads thus:-437. When bail may be taken in case of non-bailable offence.- (1) [when any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but- (i) such person shall not be so released if there appear reason-able grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence: provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm : provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason: provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court] (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non bailable offence, but that there are sufficient ground for further inquiring into his guilt, [the accused shall, subject to the provisions of Section 446a and pending such inquiry be released on bail], or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided. (3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court may impose any condition which the Court considers necessary- (a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this chapter, or (b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or (c) otherwise in the interest of justice. (4) An officer or a Court releasing any person on bail under sub-section (1) or sub-section (2), shall record in writing his or its reasons or special reasons for so doing. (5) Any Court which has released any person on bail under sub-sec (1) or sub-section (2), may if it considers it necessary so to do, direct that such person be arrested and commit him to custody. (6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the magistrate, unless for reasons to be recorded in writing, the magistrate otherwise directs. (7) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds, for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered. ( 9. ) LEARNED Counsel for the applicant vehemently submitted that as has been laid down in Gurbaksh Singhs Case (supra), the normal rule should not be to limit the operation of the order under Section 438 (1) of the Code in relation to a period of time. ( 9. ) LEARNED Counsel for the applicant vehemently submitted that as has been laid down in Gurbaksh Singhs Case (supra), the normal rule should not be to limit the operation of the order under Section 438 (1) of the Code in relation to a period of time. In this regard, the learned Counsel appearing for the applicant mainly relied on the following paragraph of the judgment in Gurbaksh singhs Case. 38. 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 FIR in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code with in a reasonably short period after the filing of the FIR as aforesaid. But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time. " (Emphasis supplied) ( 10. ) LEARNED Counsel for the applicant submitted that in view of the above observations in Gurbaksh Singhs case (supra) which is a judgment rendered by five Judge Bench, the judgment rendered in Salauddin Abdulsamad saikhs case (supra) which is a judgment of three Judge Bench and other judgments of the Apex Court and this Court taking similar view cannot be said to be binding. ( 11. ) INCASE of Salauddin Abdulsamad Shaikh in Para 2 of the judgment, the Supreme Court observed thus :- "2. 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. " (Emphasis supplied)In paragraph 3, the Court further observed thus:-". . . . . . . 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. " (Emphasis supplied)In paragraph 3, the Court further observed thus:-". . . . . . . 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 person is entitled to bail. " (Emphasis supplied) ( 12. ) THE learned Counsel submitted that the judgment rendered in salauddin Abdulsamad Shaikhs case (supra) and other judgments expressing similar views have been made without reference to Gurbaksh Singhs Case and the same cannot have any value as precedent and should be treated as having been rendered per incuriam. He also submits that in any case under Article 141 of the Constitution of India which embodies the doctrine of precedent as a matter of law, in view of the judgment rendered in Bus Operators Associations case, 2003 (1) MPHT 226 if there is any conflict between the two judgments of the Supreme Court, the one rendered by the Larger Bench shall have the binding effect. ( 13. ) ON a careful perusal of the judgment rendered in Gurbaksh Singhs case (supra), Salauddin Abdulsamad Shaikhs Case (supra) and other cases, we find that there is no inconsistency in the two sets of judgment. The judgment rendered in Gurbaksh Singhs Case does not say that an order under Section 438 of the Code cannot limit the operation of the order to a short period. In paragraph 39 of Gurbaksh Singhs Case (Supra) the five Judge Bench of the supreme Court stated thus:- ". . . . . in certain exceptional cases, the Court has, in view of the material placed before it, directed that the order of anticipatory bail will remain in operation only for a week or so until after the filing of the FIR in respect of the matters covered by the order. These orders, on the whole, have worked satisfactorily, causing the least inconvenience to the individuals concerned and least interference with the investigational rights of the police. The Court has attempted through those orders to strike a balance between the individuals right to personal freedom and the investigational rights of the police. " ( 14. These orders, on the whole, have worked satisfactorily, causing the least inconvenience to the individuals concerned and least interference with the investigational rights of the police. The Court has attempted through those orders to strike a balance between the individuals right to personal freedom and the investigational rights of the police. " ( 14. ) IN Salauddins Case (supra) also three Judge Bench of the Supreme court observed thus :- "2. . . . . . . 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 realized that when the Court of Sessions or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature of evidence against the alleged offender. It is therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the court granting anticipatory bail should leave it to the Regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted. " (Emphasis supplied) ( 15. ) THUS, neither Gurbaksh Singhs Case says that the Court cannot limit the operation of the order in relation to a period of time nor Salauddins case says that the anticipatory bail order should always be for a limited duration. ( 16. ) THERE appears no apparent inconsistency between the two judgments of the Supreme Court. The inconsistency which is being highlighted by the Counsel for the applicant is an edifice built in the air as the apparent conflict or inconsistency is not the realm of reality. The matter has been left to the discretion of the Court granting anticipatory bail. ) THERE appears no apparent inconsistency between the two judgments of the Supreme Court. The inconsistency which is being highlighted by the Counsel for the applicant is an edifice built in the air as the apparent conflict or inconsistency is not the realm of reality. The matter has been left to the discretion of the Court granting anticipatory bail. It is the discretion of the court granting bail either to pass the order without any limitation as to period of time or to limit the operation of the order in relation to period of time. ( 17. ) IN Salauddins case, the Supreme Court kept in view that the anticipatory bail is granted at a stage when the investigation is incomplete and therefore, the Court while granting anticipatory bail is not informed about the nature of the evidence against the offender. It is therefore, necessary that such anticipatory bail order 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 regular Court to deal with the matter on appreciation of evidence placed before it, after the investigation has made some progress or the charge-sheet has been submitted. In Gurbaksh Singhs case also granting of anticipatory bail only for a week or so was approved and it was observed that such orders have worked satisfactorily. Therefore, it cannot be said that in gurbaksh Singhs case the Supreme Court expressed the view that the Court granting anticipatory bail cannot limit the operation of the order in relation to a period of time. ( 18. ) IN view of the above discussion, our answer to question No. 1 referred to us is that operation of an order passed under Section 438 (1) of the code should not necessarily be limited in point of time. The Court may if there are reasons for doing so limit the operation of the order to a short period until the proper material is placed after investigation in relation to a matter covered by an order. The applicant may in such cases-be directed to obtain an order of bail under Sections 437 or 439 of the code within a reasonable period but this need not be followed as an invariable rule. The applicant may in such cases-be directed to obtain an order of bail under Sections 437 or 439 of the code within a reasonable period but this need not be followed as an invariable rule. It is at the discretion of the Court to limit or not to limit the operation of the order in relation to a period of time. ( 19. ) THE next facit of the contention relates to the period during which the protective umbrella granted under the anticipatory bail order can be claimed by the accused in whose favour the anticipatory bail order is granted for a limited period. ( 20. ) LEARNED Counsel for the applicant vehemently sumitted that till the application under Sections 437 or 439 of the Code is disposed of in one way or the other the Court may allow the accused to remain on anticipatory bail. The counsel submits that anticipatory bail may be granted for a duration which may extend to the date on which the bail application is disposed of by the Court of first instance or even few days thereafter to enable the accused to move the higher Court if so desired. ( 21. ) THE Counsel submitted that in the present case the anticipatory bail order was granted for a duration of 60 days, therefore, till the period of 60 days the applicant could not have been taken into custody and after the rejection of the application before Special Judge under Section 439 of the Code, the applicant was at liberty to move this Court for grant of bail under Section 439 of the Code as the protective umbrella also enables the accused to move the higher court if so desired. ( 22. ) IN this regard, learned Counsel for the applicant relied on Vinod kumar Vs. State of M. P. , 1998 (2) MPLJ 689 and Kalachand Patel Vs. State of M. P. , 1998 (ii) MPWN 120. The learned Counsel also relied on K. L. Verma Vs. State and another, (1998) 9 Supreme Court Cases 348 wherein the Supreme Court said that the 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 High Court if they so desired. ( 23. State and another, (1998) 9 Supreme Court Cases 348 wherein the Supreme Court said that the 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 High Court if they so desired. ( 23. ) THE learned Counsel for the applicant submitted that in view of the earlier judgment of this Court in Vinod Kumar and Kalachand Patel, the orders passed in M. Cr. C. Nos. 3184/05 and 3584/05 = 2005 (3) M. P. H. T. 272, cannot be said to be a good law. ( 24. ) THE contention is not acceptable. It is true that the judgment of vinod Kumars case states that even after the rejection of the application under section 439 or 437 of the Code subsequent application under Section 439 of the code in continuance is maintainable before the High Court but the judgment referred to above is based on K. L. Vermas case (supra) which in Sunita Devi Vs. State of Bihar, AIR 2005 SC 498 in view of the judgment of Nirmaljeet Kaur Vs. State of M. P. , (2004) 7 Supreme Court Cases 558, has been held to be judgment per incuriam. In Paragraph 22 of the judgment, the Supreme Court observed thus:- "22. If the protective umbrella of Section 438 is extended beyond what was laid down in Salauddins Case (supra) the result would be clear by passing of what is mandated in Section 439 regarding custody. In other words, till the applicant avails remedies up to higher Courts, the requirements of Section 439 become dead letter. No part of a statute can be rendered redundant in that manner. " ( 25. ) IN view of the fact that the judgment rendered in K. L. Vermas Case (Supra) has been held to be per incuriam, the view expressed in K. L. Vermas case of the Supreme Court and in Vinod Kumars case of this Court cannot be said to be binding precedents. Therefore, the judgment of this Court in Vinod kumars case 1998 (2) MPLJ 689 is liable to be overruled. ( 26. Therefore, the judgment of this Court in Vinod kumars case 1998 (2) MPLJ 689 is liable to be overruled. ( 26. ) ON the basis of above discussion, our answer to question No. 2 referred to us is that where the anticipatory bail is granted for limited duration and it is left to the regular Court to deal with the matter on an appreciation of evidence placed before it after the investigation is still in progress or the charge-sheet is submitted, sufficient time can be given to the applicant to move to regular Court for bail. Till the application is filed and accused surrendered to jurisdiction or orders of the Court, the Court may allow the accused to remain on anticipatory bail. Anticipatory bail may be granted for a duration which may extend to the date on which the bail application is taken up for consideration. When the bail application is rejected by the regular Court, the applicant cannot have further opportunity to move to the High Court under the protective umbrella. Direction under Section 438 of the Code is to be issued only at pre-arrest stage. Unless a person is in custody, an application for regular bail is not maintainable. ( 27. ) WE may hasten to add that the term custody is very elastic and may mean actual imprisonment or physical detention but it does not necessarily mean actual physical detention in jail or prison but rather synonymous with restraint of liberty. In celebrated case of Niranjan Singh Vs. Prabhakar, AIR 1980 SC 785 , it was held that where the accused had appeared and surrendered before the Sessions Judge, the Judge would have jurisdiction to consider the bail application as the accused would be considered to have been in custody within the meaning of Section 439. Custody, in the context of Section 437 and 439, is physical control or at least physical presence of the accused in Court coupled with submission to the jurisdiction and orders of the Court. He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the Court and submits to its directions. ( 28. He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the Court and submits to its directions. ( 28. ) IN order to obviate any confusion and place it without any ambiguity, we wish to state in specific terms that when an accused applies for grant of regular bail within the time prescribed by the order under Section 438 of the Code and submits to the jurisdiction of the Court, he will be in the deemed custody for regular bail and if the hearing on the application for regular bail is adjourned for any reason whatsoever or the application is rejected, it will be open to the Court to pass appropriate orders for custody of the accused consistent with law irrespective of the fact that the time prescribed in the order under Section 438 of the Code has not expired. ( 29. ) THE necessity for granting anticipatory bail was felt mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. With the accentuation of political rivalry, the tendency is showing signs of steady increase apart from false cases where there are reasonable grounds for holding that a person, accused of an offence is not likely to abscond or otherwise misuse his liberty while on bail, there seemed no justification to require him first to submit to custody, remain in prison for some days and then apply for bail. In this background, special powers have been conferred on the high Court and the Court of Session. This purpose will not stand defeated where the anticipatory bail is granted for the limited period within which the accused is directed to obtain an order of bail under Section 437 or 439 of the code. Once the accused makes an application under Section 437 or 439 of the code, the provisions of Section 438 cannot be invoked and the advantage thereunder cannot continue after the arrest of the accused which includes submission to the jurisdiction and orders of the Court. Once the accused makes an application under Section 437 or 439 of the code, the provisions of Section 438 cannot be invoked and the advantage thereunder cannot continue after the arrest of the accused which includes submission to the jurisdiction and orders of the Court. The grant of anticipatory bail or continuance of the advantage of the order under Section 438 of the Code to an accused, who is under arrest, involves a contradiction in terms. ( 30. ) THIS brings us to question No. 3 referred to us by the learned Single judge. For making an application under Section 439 of the Code, the fundamental requirement is that the accused should be in custody. Where the protection in terms of Section 438 of the Code is for a limited duration during which the regular Court has to be moved for bail obviously, the application which is moved is for regular bail. Section 439 of the Code, mandates the applicant to be in custody. Once the accused is arrested and he moves an application for regular bail before the concerned Court, the concerned Court may either allow it or reject it. If the application is rejected, the applicant cannot be allowed to move out of the custody of the Court. If the accused moves out of the custody of the Court, he cannot be said to be in custody and an application under Section 439 of the Code will not lie as the application under Section 439 of the Code presupposes custody. ( 31. ) THUS, our answer to question No. 3 referred to us is that for the purpose of moving an application under Section 439 of the Code, the applicant must be in custody. Section 439 of the Code mandates the applicant to be in custody. If the person is not in custody of the Court or moves out of the custody, an application under Section 439 of the Code is not maintainable. The applicant who has been enlarged on anticipatory bail for limited duration and whose application under Section 439 of the Code is rejected by the Sessions Court cannot be allowed to remain at large to enable him to move the higher Court for granting bail under Section 439 of the Code. ( 32. The applicant who has been enlarged on anticipatory bail for limited duration and whose application under Section 439 of the Code is rejected by the Sessions Court cannot be allowed to remain at large to enable him to move the higher Court for granting bail under Section 439 of the Code. ( 32. ) IN view of our preceding analysis, we proceed to enumerate our conclusions in answers to the questions referred in seriatim :- (1) Operation of an order passed under Section 438 (1) of the Code should not necessarily be limited in point of time. The Court may if there are reasons for doing so limit the operation of the order to a short period until the proper material is placed after investigation in relation to a matter covered by an 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 reasonable period but this need not be followed as an invariable rule. It is at the discretion of the Court to limit or not to limit the operation of the order in relation to a period of time. (2) Where the anticipatory bail is granted for limited duration and it is left to the Regular Court to deal with the matter on an appreciation of evidence placed before it when the investigation is still in progress or the charge-sheet is submitted, sufficient time can be given to the applicant to move to regular Court for bail. Till the application is filed and accused surrenders to jurisdiction or orders of the Court, the Court may allow the accused to remain on anticipatory bail. Anticipatory bail may be granted for a duration which may extend to the date on which the bail application is taken up for consideration. When the bail application is rejected by the regular Court, the applicant cannot have further opportunity to stage. Unless a person is in custody, an application for regular bail is not maintainable. (3) For the purpose of moving an application under Section 439 of the Code, the applicant must be in custody. Section 439 of the Code mandates the applicant to be in custody. If the person is not in custody of the Court or moves out of the custody, an application under Section 439 of the Code is not maintainable. (3) For the purpose of moving an application under Section 439 of the Code, the applicant must be in custody. Section 439 of the Code mandates the applicant to be in custody. If the person is not in custody of the Court or moves out of the custody, an application under Section 439 of the Code is not maintainable. The applicant who has been enlarged on anticipatory bail for limited duration and whose application under Section 439 of the Code is rejected by the sessions Court cannot be allowed to remain at large to enable him to move the higher Court for granting bail under Section 439 of the code. ( 33. ) THE matter be now listed before the learned Single Judge for further orders.