Regular bail requires custody; anticipatory bail cannot bypass Section 439's statutory custody requirement.

Regular bail under Section 439 of the Code of Criminal Procedure is maintainable only when the accused is in custody; the custody requirement cannot be bypassed by relying on anticipatory bail principles. The distinction between anticipatory bail under Section 438 and regular bail under Section 439 remains material because the former is protective relief before arrest, while the latter applies after custody has attached. On the facts discussed, the court found no sufficient basis to interfere with refusal of bail, having regard to the allegations, stage of proceedings, and the limited material supporting release. The refusal of bail was therefore left undisturbed.

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Issues: (i) Whether an application for bail under Section 439 of the Code of Criminal Procedure, 1973 is maintainable unless the accused is in custody. (ii) Whether the facts of the case justified grant of bail.

Issue (i): Whether an application for bail under Section 439 of the Code of Criminal Procedure, 1973 is maintainable unless the accused is in custody.

Analysis: Section 439 operates only when the person seeking bail is in custody. The distinction between anticipatory bail under Section 438 and regular bail under Section 439 cannot be diluted, because anticipatory bail is a limited protective relief meant to preserve liberty before arrest, whereas the regular court must decide bail after custody is attracted. Extending the protection beyond that stage would make the custody requirement under Section 439 redundant.

Conclusion: An application under Section 439 is not maintainable unless the accused is in custody.

Issue (ii): Whether the facts of the case justified grant of bail.

Analysis: The Court considered the nature of the allegations, the stage of the proceedings, the limited material shown to support release on bail, and the settled approach that detailed assessment of evidence is avoided at the bail stage, while seriousness of the offence and the interests of society remain relevant. On the material placed, no ground was made out for interference with the refusal of bail.

Conclusion: Bail was not warranted on the facts.

Final Conclusion: The appeal failed, and the refusal of bail was left undisturbed.

Ratio Decidendi: Regular bail under Section 439 is available only to an accused who is in custody, and anticipatory bail cannot be used to bypass that statutory requirement.

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