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Allegation against the appellant was that he is involved in several nefarious activities of smuggling of antiques particularly the idols to foreign countries for heavy sums of money.
Challenge in this appeal is to the order passed by a learned Single Judge of the Rajasthan High Court at Jodhpur, rejecting the application for bail filed by the appellant. An earlier application for bail filed by the appellant was also rejected by the High Court by order dated 15.12.2003.
Stand of appellant before the High Court was that he was discharged of offence punishable under Section 413 of the Indian Penal Code, 1860 (in short the ‘IPC') by the trial Court and therefore he was facing trial only for the offence triable by the Court of Magistrate, i.e. under Sections 457, 380 and 411 IPC.
It was the stand of the appellant that the evidence of the prosecution witnesses was not sufficient to secure his conviction in respect of any of the charges. It was pointed out that evidence of seven witnesses have been recorded and none of them has implicated him in the crime.
There is no recovery from him and other co-accused persons similarly situated namely, Madam Mohan Agarwal and Manoj

Sharma had been enlarged on bail. Out of 10 cases registered against him, he has been granted bail in six cases.

                                                                              OBSERVATIONS OF COURT

- Learned counsel for the respondent submitted that though the proceedings have been stayed and several cases have been clubbed together, the charge sheet was filed on 27.9.2003 and on 21.4.2005 the order of discharge was passed. The only distinguishing feature pointed out by the appellant to seek reconsideration of the prayer for bail was the order of discharge. -Section 439 of the Code reads as follows: "439. (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 the Magistrate when releasing any person on bail be set aside or modified." (underlined for emphasis). - It is clear from a bare reading of the provisions that for making an application in terms of Section 439 of the Code a person has to be in custody. Section 438 of the Code deals with "Direction for grant of bail to person apprehending the view of the clear language of Section 439 and in view of the decision of this Court in Niranjan Singh and Anr. v. Prabhakar Rajaram Kharote and Ors. (AIR 1980 SC 785), there cannot be any doubt that unless a person is in custody, an application for bail under Section 439 of the Code would not be maintainable. -The question when a person can be said to be in custody within the meaning of Section 439 of the Code came up for consideration before this Court in the aforesaid decision. - Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead, innocence, since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the offence in respect of which he seeks bail. The applicant must show that he has ‘reason to believe' that he may be arrested in a non-bailable offence.


The appeal of the appellant was dismissed. REFERENCES