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Issues: (i) Whether a blanket order of anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 could be sustained on the facts. (ii) Whether an application for regular bail under Section 439 of the Code of Criminal Procedure, 1973 could be entertained without the accused being in custody, and what relief should follow.
Issue (i): Whether a blanket order of anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 could be sustained on the facts.
Analysis: Section 438 confers an extraordinary protective remedy meant for situations where there are reasonable grounds to believe that a person may be arrested in a non-bailable offence. The power is not intended to operate as a blanket immunity covering every possible accusation or to be extended beyond its proper limits. Anticipatory bail is generally of limited duration and must not be used to bypass the regular court or render the statutory scheme redundant. On the facts, the High Court had erred in granting blanket protection and in recording an incorrect factual premise that the accused were not named in the FIR.
Conclusion: The blanket anticipatory bail order could not be sustained.
Issue (ii): Whether an application for regular bail under Section 439 of the Code of Criminal Procedure, 1973 could be entertained without the accused being in custody, and what relief should follow.
Analysis: Section 439 operates only when the applicant is in custody, and the distinction between anticipatory bail and regular bail must be preserved. Extending anticipatory protection so as to permit an accused to avoid custody altogether would make Section 439 meaningless. The proper course was therefore to require surrender and then seek regular bail, which the concerned court was expected to consider expeditiously in accordance with law.
Conclusion: Custody was necessary for regular bail, and the respondents were directed to surrender and apply for bail before the competent court.
Final Conclusion: The appeal failed on the challenge to the grant of anticipatory protection, and the respondents were required to surrender and pursue regular bail before the competent court.
Ratio Decidendi: Anticipatory bail under Section 438 is a limited protective remedy that cannot be granted as a blanket order or used to bypass the custody requirement for regular bail under Section 439.
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