JUDGMENT B.L. Yadav, J. 1. This is an application under section 439 of the Code of Criminal Procedure, 1973 on behalf of Ram Kishan Misra and the prayer has been made that he may be permitted to surrender before this Court and his bail application may be considered on merits. 2. In accordance with the prosecution case the applicant is sought to be prosecuted in Crime No. 458 of 1985, Police Station Kotwali, district Farrukhabad for an offence under section 302 IPC. The applicant has neither surrendered before the Magistrate nor before the Sessions Judge. He has made this application that he may be permitted to surrender before this Court and his bail application may be considered on merits. I have heard Sri N. C. Upadhaya, the learned Senior Advocate, for the applicant and Sri S. N. Singh, the learned Counsel for the State. 3. It has been urged by the learned counsel for the applicant that the applicant has not surrendered so far and wants to surrender before this Court and his bail application may be considered directly by this Court without any application having been filed either before the Magistrate or before the Sessions Judge and on merits he urged that the applicant is entitled to bail. In support of his submissions ' he placed reliance on Parmjit Singh v. State of U. P., 1971 AWR 701, Onkar Nath Agarwal v. Stale, 1976 AWC 81 and Niranjan Singh v. Prabhakar Rajaram Kharote, AIR 1980 SC 785 . 4. I have considered the arguments advanced on behalf of the parties. In this case the present application has been moved before this Court without any such application having been moved either before the Magistrate or before the Sessions Court. The applicant has also not surrendered either before the Magistrate or before the Sessions Court, but he wants to surrender before this Court. The power of this Court for granting bail has been provided under section 439 CrPC 1973. It is better to set out the statutory provision of section 439 (1) CrPC, 1973 so far it is relevant for the present case :- "439. The power of this Court for granting bail has been provided under section 439 CrPC 1973. It is better to set out the statutory provision of section 439 (1) CrPC, 1973 so far it is relevant for the present case :- "439. Special powers of High Court or Court of Sessions regarding bail : - (1) A High Court or Court of Sessions 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." A bare perusal of the aforesaid provision makes it clear that for a bail application being considered by this Court it is necessary that a person must be an accused op an offence and further he must be in custody. The 'custody' in connection with of leccused when he has been involved in some criminal case, obviously means nothings than having surrendered and having been sent to jail or having been remanden jail by the Court. In other words it means that he must be under the super vision of either the police or the jail authorities. The word 'custody' according to Bouvier's Law Dictionary denotes (on page 741) "'the detainer of a person by virtue of a lawful authority......Custody has been held to mean nothing less than actual imprisonment." 5. According to Encyclopaedic Law Dictionary by Biswas "custody" means as soon as an accused or suspected person comes into the hands of a police officer, he is, in the absence of clear evidence to the contrary, in custody......'. 6. According to 'Words and Phrases' Legally defined the word 'custody' denotes 'commit to custody' means to commit to prison or, where any enactment authorises or requires committal to some other place of detention instead of committal to prisoners to that other place." It is, therefore, clear that 'custody' means committing to prison. 7. Onkar Nath Agarwal v. State (supra) was a Special Bench case wherein the scope of Section 439 CrPC 1973 was considered in respect of granting anticipatory bail and the controversy as to whether anticipatory bail application could be entertained by the High Court directly and in that connection it was held that the High Court can entertain application directly. It does not help the applicant. 8. It does not help the applicant. 8. In Parmjit Singh v. State of U. P. (Supra) it was held that the High Court can entertain an application for bail under Section 439 CrPC (Old). I have no quarrel with the proposition laid by this case. But I think that the present case is in respect of different controversy. In Niranjan Singh v. Prabhakar Rajaram Kharote (Supra) their Lordships of the Supreme Court were dealing with a case with entirely different facts and in that case the accused had surrendered before the Sessions Judge. On page 787 (para 5) Hon'ble Krishna Iyer, J. held as follows : "But here the position is different. The accused were not absconding but had appeared and surrendered before the Sessions Judge. " Similarly in para 9 of the judgment the observation was made as follows :- ".........the accused surrendered before the Sessions Court and the Sessions Court acquired jurisdiction to consider the bail application." Hence the aforesaid case was based on different facts where the accused had surrendered before the Sessions Court. But in the instant case the accused has not surrendered. I am of the opinion that in view of the provisions of Section 439 CrPC unless the applicant was taken into custody or in other words he surrenders himself either before the Sessions Court or before the Magistrate this Court cannot consider the bail application nor he can be enlarged on bail by this Court. It appears that the Legislature was wise enough to provide under section 439 (1) a condition precedent that the accused must be in custody before his bail application can be moved and considered before the High Court. As the applicant, in the instant case, was not in custody, hence his bail application cannot be considered by this Court. 9. As regards the argument of the learned counsel for the applicant that the bail application can be considered directly by the High Court, I am of the opinion that as the applicant has not surrendered and he was not in custody, hence there was no question of his bail application being considered and it is unnecessary to go into that controversy. 10. 10. Similarly, as I am of the opinion that unless the applicant surrenders or is taken into custody he has no right to make the bail application nor this can be considered ; it would be equally futile to consider the bail application of the applicant on merits. I am accordingly of the view that the present bail application is not maintainable as the accused applicant was not in custody. This application is accordingly rejected as not maintainable. It is, however, open to the applicant to pursue his remedy provided under the law. Application rejected.