P. K. MISRA, J. ( 1 ) THE petitioner is the father-in-law of deceased Monalisa who had married the son of the petitioner in the year 1994. FIR has been lodged on 30-10-1998 by the father of the deceased alleging commission of offences under Sees. 4gb-A, 304-B and 306, read with Section 34. Indian Penal Code, wherein the present petitioner, his wife and son have been arraigned as the accused persons. Investigation in the said case is still continuing. The petitioner and his wife had earlier filed Criminal Misc. Case No. 4 72 1/98 under Sec. 438, Code of Criminal Procedure (in short, the Cr. P. C.) in the High Court. The said petition was withdrawn by order dated 10-11-1998. Subsequently, the present petitioner and his wife filed another application under Sec. 438, Cr. P. C. in the High Court which was numbered as Criminal Misc. Case No. 5106 of 1998. In the said application under Sec. 438. Cr. P. C. interim protection was given to the accused persons from time to time and ultimately, the High Court by judgment dated 18-12-1998, while extending the period of interim protection for a further period of two weeks, declined to grant anticipatory bail but permitted the accused persons to move the appropriate Court (that is to say, the Court of the S. D. J. M.) for bail. It was further observed that in case the bail is rejected, the accused persons may move the higher Court. The decision is reported in Rajendra Kishore Kanungo and another v. State of Orissa. Thereafter, the present petitioner and his wife appeared before the S. D. J. M. and filed application under Sec. 437. Cr. P. C. which having been rejected by the S. D. J. M. an application under Sec. 439, Cr. P. C. was filed before the Sessions Judge. The Additional Sessions Judge who dealt with the matter rejected the petition for bail by order dated 26-12-1998. However, since the petitioner and his wife were still under the umbrella of the interim protection granted by the High Court, the accused petitioners were not remanded to jail custody, but continued to remain under the protection of interim bail. Before expiry of the said period, the petitioner and his wife filed further application in the High Court, this time under Sec. 439. Cr. P. C. , which was numbered as Criminal Misc. Before expiry of the said period, the petitioner and his wife filed further application in the High Court, this time under Sec. 439. Cr. P. C. , which was numbered as Criminal Misc. Case No. 5749 of 1998. In the said proceeding again the interim protection/bail granted to the petitioner and his wife earlier was extended from time to time. Ultimately, the said bail application under Sec. 439. Cr. P. C. was disposed of by the High Court by judgment dated 16th February 1999. In the said case while granting bail to the wife of the petitioner by applying the provision of Section 437 (1), Proviso, Cr. P. C. the prayer for bail of the present petitioner was rejected and he was directed to surrender before the S. D. J. M. on 17-2-1999. ( 2 ) THE facts and circumstances leading to filing of the present three petitions start thereafter, as would be evident from the following narration of events. On 17-2-1999, the present petitioner instead of surrendering before the S. D. J. M. filed an application forbail under Sec. 437. Cr. P. C. stating therein that he had been hospitalised in the Capital Hospital. Bhubaneswar, and as such was not in a position to surrender physically before the S. D. J M. The petitioner, however, did not file any application in the High Court for extension of the interim protection granted by the High Court, which expired on 17-2-1999. The S. D. J. M. by his order dated 17-2-1999 found that since the accused-petitioner had not surrendered before the S. D. J. M. as per the direction given by the High Court, the application for bail was not maintainable. Strangely, however, the S. D. J. M. did not issue any coercive process for apprehension of the petitioner although there was specific direction by the High Court that the petitioner was to surrender on 17-2-1999 and the interim bail granted by the High Court and furnished before the S. D. J. M. expired on 17-2-1999. On the other hand, the S. D. J. M. posted the matter to 17-3-1999 awaiting final form on the next day i. e. on 18-2-1999, the petitioner came to the Court of the S. D. J. M. being accompanied by a private doctor. The S. D. J. M. noted that the petitioner was brought to Court having saline drip being administered on the left hand. The S. D. J. M. noted that the petitioner was brought to Court having saline drip being administered on the left hand. The S. D. J. M. also noted the presence of the doctor who stated that he had accompanied the petitioner from Capital Hospital on the request of the petitioner; as the petitioner was undergoing treatment. A prayer was made on behalf of the petitioner to accept his surrender and to release him on bail or to remand him to jail custody with further direction to the jail authorities to provide adequate treatment inside the jail. It was also prayed that he may be allowed to go in a private vehicle accompanied by the doctor to the jail. The S. D. J. M. refused to accept the surrender on the ground that the petitioner had not complied with the direction of the High Court to surrender by 17th February 1999, and there was no further direction from the High Court to the S. D. J. M. to accept the surrender on any other day. The S. D. J. M. for good measure observed: Thus there is no direction from Hontble High Court to this Court to accept the surrender of accused today. Under this circumstance when the condition of the accused is not conducive for physical surrender for the purpose of custody and as per thet Doctor, present in the Court, his condition is physically bad and unpredictable, this Court cannot accept the surrender, whose life is at a risk. Learned A. P. P. also submitted, that in view of physical unfitness of accused his surrender should not be accepted. Having regard to above fact, this Court is unable to accept the surrender of accused Rajendra Kanungo. Learned defence counsel. Mr. Ray submitted that the surrender of accused may be accepted and he may be allowed to be medically treated inside jail and for that, he would be allowed private vehicle and doctor to accompany the accused to jail. I am unable to accept such contention as law does not permit to allow private interference after a person taken into judicial custody. Furthermore judicial order should not be allowed to interfere in the jail administration by allowing a person to the jail whose condition is not conducive to continue as per expert medical report. Having regard to above fact. I am unable to accept such contention as law does not permit to allow private interference after a person taken into judicial custody. Furthermore judicial order should not be allowed to interfere in the jail administration by allowing a person to the jail whose condition is not conducive to continue as per expert medical report. Having regard to above fact. I am unable to accept the surrender of the accused Rajendra Kishore Kanungo and for that the bail petition filed is not maintainable. Subsequently, the counsel for the informant filed a petition purporting to be one under Sec. 446 (4 ). Cr. P. C. before the S. D. J. M. stating that since the accused had defaulted in complying with condition of the bail bond necessary steps for apprehension be taken. The said petition was again directed to be placed on 17-3-1999 for objection and hearing. Thereafter, the petitioner filed an application purporting to be one under Sec. 439. Cr, P. C. , which was numbered as Criminal Misc. Case No. 13/163 of 1999 in the Court of the Sessions Judge. Khurda at Bhubaneswar, which has been dismissed by the Additional Sessions Judge. Bhubaneswar by order dated 5-3-1999 on the ground that the petition under Sec. 439. Cr. P. C. was not maintainable as the petitioner was not in custody. ( 3 ) CRIMINAL Misc. Case No. 1063/99 has been filed under Sec. 482. Cr. P. C. in the High Court on 8-3-1999 for setting aside the order dated 5-3-1999 passed by the Additional Sessions Judge. Bhubaneswar, where under the bail application under Sec. 439. Cr. P. C. was rejected as not maintainable. In the petition under Sec. 482, Cr. P. C. a prayer has also been made to enlarge the petitioner on bail. Subsequently on 10-3-1999. Criminal Revision No. 134/99 was filed under Sec. 401. Cr. P. C. challenging the legality of the order dated 17-2-1999 passed by the S. D. J. M. in G. R. Case No. 3357 of 1998 where under the S. D. J. M. had refused to consider the prayer for bail under Sec. 437. Cr. P. C. on the ground that the petitioner had not surrendered before the S. D. J. M. Subsequently, on 16-3-1999 the petitioner has filed Criminal Revision No. 145/99 under Sec. 401, read with Section 482. Cr. Cr. P. C. on the ground that the petitioner had not surrendered before the S. D. J. M. Subsequently, on 16-3-1999 the petitioner has filed Criminal Revision No. 145/99 under Sec. 401, read with Section 482. Cr. P. C. challenging the legally of the order dated 18-2-1999 passed by the S. D. J. M. Bhubaneswar, where under the S. D. J. M. refused to accept the prayer of the petitioner for surrender. ( 4 ) INITIALLY, Criminal Misc. Case No. 1063/99 was placed on 11-3-1999, 12-3-1999 and 16-3-1999 and ultimately the three petitions were placed on 17-3-1999 when the matters were heard and orders reserved. All the three petitions are being disposed of by the present order. ( 5 ) THERE is no dispute that unless a person is in custody the question of consideration of bail application under Sec. 439. Cr. P. C. does not arise. It was contended before the Additional Sessions Judge that on 17-2-1999 the petitioner was not in a position to surrender before the S. D. J. M. Physically due to his treatment as an indoor patient in Capital Hospital, Bhunbaneswar, and an application under Sec. 437, Cr. P. C. had been filed through his Advocate by enclosing medical certificates. In this back-ground, it was submitted by the counsel for the petitioner that the petitioner was deemed to be in judicial custody and his application for bail should have been considered. It was further submitted by the petitioner that he had physically appeared before the S. D. J. M. on the very next day i. e. on 18-2-1999 and even though the S. D. J. M. refused to accept the surrender of the petitioner, it should be taken that he was in custody. It should be noticed that though the petitioner had physically appeared before the S. D. J. M. on 18-2-1999, his surrender was not accepted and the S. D. J. M. had allowed the petitioner to go back. The period of interim bail granted by the High Court had admittedly expired on 17-2-1999. In such circumstances, it cannot be said that petitioner was still continuing under the umbrella of interim bail after 17-2-1999, nor it can be said that he was in judicial custody. It is of course, true that the S. D. J. M. was prima facie not justified in not accepting the surrender of the petitioner on 18-2-1999. In such circumstances, it cannot be said that petitioner was still continuing under the umbrella of interim bail after 17-2-1999, nor it can be said that he was in judicial custody. It is of course, true that the S. D. J. M. was prima facie not justified in not accepting the surrender of the petitioner on 18-2-1999. However, that does not mean that the petitioner was in custody either actualt or deemed after 18-2-1999. The petitioner never prayed for surrendering before the Additional Sessions Judge, nor he was physically present before the Additional Sessions Judge when the matter of ban was being considered. One significant fact, which needs to be emphasised is that though the interim protection given to the petitioner had expired on 17-2-1999 and there was a specific direction by the High Court that the petitioner should surrender on 17-2-1999, no petition has been filed in the High Court for extension Tof the interim bail or for furnishing of fresh interim bail for the subsequent period. Therefore, by no stretch of imagination, it can be said that at the time when the matter was being considered by the Sessions Judge under Sec. 439. Cr. P. C. ,. the petitioner was in custody. The prayer for anticipatory, bail of the petitioner had been earlier rejected by the High Court. r. . . The prayer for bail under Sec. 439, Cr. P. C. while the petitioner was still under the umbrella of interim protection and thus in deemed custody was also rejected by the High Court. Yet, the petitioner persisted in his attempt to secure bail order purporting to be one under Sec. 439. Cr. P. C. The procedure adopted by the petitioner was neither one under Sec. 438. nor one under Sec. 439. Cr. P. C. The learned counsel for the State has described it in lighter vein as one under Sec. 438 that is to say. a strange combination of both Sections 438 and Section 439, Cr. P. C. ( 6 ) THE learned counsel appearing on behalf of the petitioner has submitted that the petitioner should be considered to be in custody in view of the observations made in the decision reported in Niraanjan Singh and another v. Prabakar Rajaram Kharote and others. In the said case while rejecting the application for bail under Sec. 437, Cr. In the said case while rejecting the application for bail under Sec. 437, Cr. P. C. the S. D. J. M. Instead of remanding the accused had passed an order of interim stay to enable the accused to move the Sessions Judge. However, while moving before the Sessions Judge, the accused appeared before the Sessions Judge and moved for bail. The Sessions Judge allowed the petition and granted bail. Such order of the Sessions Judge was sought to be challenged on the ground that the accused was not in custody. In the aforesaid context, it was observed: ( 7 ) WHEN is a person in custody, within the meaning of Sec. 439, Cr. P. C. ? When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the Court having been remanded by judicial order or having offered himself to the Courts jurisdiction and submitted to its orders by physical presence, No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the Court or is in the physical hold of an officer with coercive power is in custody for the purpose of Sec. 439. This word is of elastic semantics but it core meaning is that the law has taken control of the person. The equivocalory quibblings and hide-and seek niceties sometimes heard in Court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubitation are unfair evasions of the straight-forwardness of law. We need not dilate on this shady factor here because we are notified that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose. (Emphasis supplied ). ( 8 ) CUSTODY, in the context of Sec. 439. (we are not. be it noted. dealing with anticipatory bail under Sec. 438) is physical control or at lowest physical presence of the accused in Court coupled with permission to the jurisdiction and orders of the Court. ( 9 ) HE can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. dealing with anticipatory bail under Sec. 438) is physical control or at lowest physical presence of the accused in Court coupled with permission to the jurisdiction and orders of the Court. ( 9 ) HE can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the Court and submits to its directions. In the present case the police officers applied for bail before a Magistrate who refused to bail and still the accused, without surrendering before the Magistrate. obtained an order for stay to move the Sessions Court. This direction of the Magistrate was wholly irregular and may be enabled the accused persons to circumvent the principle of Sec. 439, Cr. RC. We might have taken a serious view of such a course, indifferent to mandatory provisions, by the subordinate magistracy but for the fact that in the present case the counsel made so far it by surrender before the Sessions Court. Thus, the Sessions Court acquired jurisdiction to consider the bail application. It could have refused bail and remanded the accused to custody but in the circumstances and for the reasons mentioned by it, exercised its jurisdiction in favour of grant of bail (Emphasis added ). A perusal of the aforesaid observations leaves no room for doubt that in the context of Section 439. Cr. P. C. custodyt means physical presence of the accused in Court coupled with submission to jurisdiction and orders of the Court. Keeping in view the situation envisaged in the decision reported in K. L. Verma v. State and another, it can be added that a person under the umbrella of interim protection by virtue of orders passed under Sec. 438. Cr. P. C. can also be said to be in custody for the purpose of Section 439. Cr. P. C. during the continuance of such interim protection. This position is clear from the decision reported in Shri Indrajeet Roy v. Republic of India. 7. Cr. P. C. can also be said to be in custody for the purpose of Section 439. Cr. P. C. during the continuance of such interim protection. This position is clear from the decision reported in Shri Indrajeet Roy v. Republic of India. 7. In the present case, however, it cannot be said that the petitioner was in custody as interpreted in the decision of the Supreme Court reported in AIR 1980 Supreme Court 785 (supra), or as interpreted in subsequent decision of this Court reported in The State v. Maguni Charan Sahu and others and (1997) 13 OCR 480 (supra ). The period of interim protection granted to the petitioner which was being extended from time to time since November. 1998. had ultimately expired on 17-2-1999 and there was a specific direction that the petitioner should surrender on 17-2-1999. Prima facie, it appears that the petitioner has tried to circumvent such direction by filing an application through Advocate on 17-2-1999 for bail under Sec. 437, Cr. P. C. on the ground of hospitalisation. The very fact that the petitioner did not choose to file any application before the High Court on 17-2-1999 or soon thereafter for extension of the-interim bail (even now no such petition has been filed) is indicative of the un-relating endeavour of the petitioner to avoid surrender. As submitted by the learned counsel for the State, it appears prima facie that there has been an attempt at unfair evasions of the straight forwardness of the law as observed in paragraph-7 of the decision of the Supreme Court reported in AIR 1980 S. C. 785. In the said Supreme Court decision, the accused had at least made up for the deficiency in the order of the Magistrate by surrendering before the Sessions Judge when the bail was considered and allowed. In the present case, it is not so. The petitioner had not appeared before the S. D. J. M. on 17-2-1999 as directed and though he had appeared on 18-2-1999, such surrender was not accepted by the S. D. J. M. While moving before the Sessions Judge, the petitioner had not surrendered before the Sessions Judge and though in the meantime. more than a month has elapsed, the petitioner has never tried to seek for an extension of the interim protection from the High Court. more than a month has elapsed, the petitioner has never tried to seek for an extension of the interim protection from the High Court. In the aforesaid back-ground, it cannot be said that the petitioner was in custody when he moved the application for bail before Additional Sessions Judge, nor he in custody now. Therefore, his prayer for bail was rightly rejected by the Additional Sessions Judge as not maintainable. Though the petitioner has also prayed for bail in this application under Sec. 482. Cr. P. C. , such a prayer cannot be entertained under Sec. 482. Cr. P. C. nor there is any occasion to exercise such a power since the petitioner still continues to be outside even though the period of interim bail granted to him has expired long since with effect from 17-2-1999. Jurisdiction under Sec. 482, Cr. P. C. is meant to prevent an abuse of the process of law and not to assist such abuse. 8. In Criminal Revision No. 134/ 99, the petitioner has challenged the legality of the order dated 17-2-1999 passed by the S. D. J. M. when the S. D. J. M. refused to consider the application for bail under Sec. 437. Cr. P. C. on the ground that the petitioner had not surrendered as per the direction of the High Court. There is no dispute that the application for bail though signed by the petitioner was filed through the Advocate and the petitioner admittedly had not appeared before the S. D. J. M. Whether or not the petitioner was genuinely admitted in the hospital is immaterial for the said purpose. The S. D. J. M. on his own could not have extended the period of interim bail granted by the High Court. It is surprising that the petitioner never thought it proper to file any appropriate application for extension in the High Court though the High Court at Cuttack is situated at a place hardly about 25, kilometers from Bhubaneswar. Since the petitioner had not surrendered before the S. D. J. M. , Bhubaneswar, the S. D. J. M. was right in not entertaining the application under Sec. 437, Cr. P. C, and in directing the petitioner to surrender forthwith. As such, the contentions raised in Criminal Revision No. 134/99 are to be rejected for the reasons already indicated in the earlier paragraphs. 9. P. C, and in directing the petitioner to surrender forthwith. As such, the contentions raised in Criminal Revision No. 134/99 are to be rejected for the reasons already indicated in the earlier paragraphs. 9. Criminal Revision No. 145/99 is directed against the order dated 19-2-1999 passed by the S. D. J. M. refusing to accept the surrender of the petitioner. The S. D. J. M. has refused to accept such surrender mainly on the ground that the High Court had directed to surrender on 17-2-1999 and yet the accused petitioner had failed to do so. Another ground recorded by the S. D. J. M. relates to the alleged health condition of the petitioner. There is no doubt that the S. D. J. M. has committed an error in not accepting the surrender on 18-2-1999. It is no doubt true that the High Court had directed the petitioner to surrender on 17-2-1999 and the interim bail furnished by the petitioner was valid till 17-2-1999. If the petitioner had not complied with the said direction, the bail bond of the petitioner was to be forfeited and appropriate steps were to be taken by the S. D. J. M. for apprehending the petitioner. When the petitioner himself appeared on 18-2-1999, he should have been taken into custody as his period of interim bail had already expired. The petitioner was admittedly one of the main accused in the G. R. Case the records of which were in the office of the S. D. J. M. An accused may be brought before a Magistrate by the police, or an accused may surrender voluntarily before the Magistrate having jurisdiction. The question of accepting or not accepting such surrender can arise only when there is doubt in the mind of the Magistrate regarding the status of the person offering to surrender before the Court. If from the records available, the Magistrate is in doubt as to whether the person appearing before the Magistrate is an accused or not, the Magistrate may not accept such surrender. Where, however, there is no such doubt in this regard, there is no occasion for a Magistrate to refuse surrender. As a matter of fact, since the petitioner had already violated the Court's order and had not surrendered on 17-2-1999, it was the duty of the Magistrate to take appropriate coercive steps to enforce the presence of the accused before the Court. As a matter of fact, since the petitioner had already violated the Court's order and had not surrendered on 17-2-1999, it was the duty of the Magistrate to take appropriate coercive steps to enforce the presence of the accused before the Court. By not accepting the surrender of the petitioner and allowing him to walk away from the Court itself is again counterproductive in such cases, as the accused person who should be in custody is allowed to remain outside. If the S. D. J. M. actually felt that the condition of the accused person was really serious, he was not powerless in the matter. Keeping in view the provisions contained in Section 437 (1), Proviso, Cr. P. C. , the Magistrate could have exercised his discretion by releasing an accused person on bail, if not on regular basis, at least for a temporary period, till improvement in the condition of such an accused. The observation of the Magistrate that he could not have permitted the petitioner to go in the company of a private person after taking him into custody also sounds hollow. If the Magistrate was so finicky about the official procedure, he could have sent the accused person in official police van and could have allowed the doctor brought by the accused to follow in the car belonging to the accused. It is not understood as to how the S. D. J. M. has adhered to the official procedure by allowing an accused whose interim bail had expired to walk away from the Court and further adjoining the case to a date beyond one month. ( 10 ) EVEN though in the facts and circumstances of the case the order dated 18-2-1999 of the Magistrate was improper, yet that by itself is not a ground to hold that the subsequent bail petition before the Sessions Judge was maintainable. More than a month has elapsed from the said date by now. The petitioner has not produced any material before this Court regarding his health condition. If the condition of the petitioner was really serious and he was admitted into the Capital Hospital in the evening of 16-2-1999, it is not understood as to how hospital authorities allowed the petitioner to go away from the hospital on 18-2-1999. The petitioner has not produced any material before this Court regarding his health condition. If the condition of the petitioner was really serious and he was admitted into the Capital Hospital in the evening of 16-2-1999, it is not understood as to how hospital authorities allowed the petitioner to go away from the hospital on 18-2-1999. It is submitted by the learned counsel for the State that there is more to such illness than that meets the eyes. It is further submitted that there is no bar for treatment of a sick person inside jail and even in a Government Hospital under the surveillance of security guard. It is not understood as to how the Assistant Public Prosecutor advised otherwise in the Court of the S. D. J. M. A doubt arises as to whether in fact the petitioner wanted to take advantage of the procedure of law by trying to secure bail under Sec. 437, Cr. P. C. or under Sec. 439, Cr. P. C. even though he was not in custody. ( 11 ) FOR the aforesaid reasons, I do not find any merit in the applications, which are rejected. Needless to point out that since the period of interim bail has long since expired, the concerned S. D. J. M. before whom the interim bail had been furnished should now wake up to the situation and take appropriate steps for apprehension of the petitioner in accordance with law, if the petitioner has not surrendered in the meantime. Petition dismissed.