JYOTHISH Vs. STATE OF KERALA

JUDGEMENT

(1.) The Constitution Bench thus appears to have clearly laid down what the normal rule should be though exceptions to that normal rule are not anathema to the law. An order unlimited in point of time is not the blanket order which is contemplated in Gurbakash Singh or other precedents. An order unlimited in point of time is the normal order under S.438(1) Cr.P.C, it is evident beyond controversy from Para.38 of Gurbaksh Singh extracted above.

(2.) Before referring to Salauddin Abdulsamad Shaikh and the line of subsequent decisions it will be apposite to refer to the decision in Bharat Chaudhary. A two Judge Bench of the Supreme Court in Bharat Chaudhary held that the powers under S.438 of the Cr.P.C. can be invoked even at the later stage after filing of the charge sheet and taking of cognizance by the court. In such a case, normally, there can be no question of limiting the operation of the order under S.438 of the Cr.P.C. to any particular period. In Para.7, the Supreme Court observed as follows:

(3.) The learned counsel for the petitioner also relies on S.438(3) of the Cr.P.C which speaks of the consequences of an order passed under S.438(1) of the Cr.P.C. After the grant of the order, if the petitioner were to be arrested at any later point of time without warrant by an officer in charge of the police station, he has to be released on bail in terms of the order.