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2005 DIGILAW 224 (CHH)

RAMDHANI YADAV v. STATE OF C. G.

2005-06-27

DHIRENDRA MISHRA

body2005
ORDER As per Hon'ble Shri Dhirendra Mishra, J. :- 1. The applicants have preferred this application under section 439 of the Code of Criminal Procedure for grant of bail as their application for regular bail has been rejected by the learned Sessions Judge, Ambikapur by the impugned order dated 3-1-2005. 2. Case of the prosecution is that complainant Phulkumari lodged a complaint on 5-9-2004 to the effect that on 24-5-2002 the applicants got a sale deed executed in respect of land bearing Khasra No. 298/5 area measuring 290 hectare in place of land bearing Khasra No. 309 area measuring 10 decimal and on the basis of said complaint Crime No. 174/2004 was registered against them at Police Station Lakhanpur for the offences punishable under sections 420, 467, 468 and 471 of the IPC. 3. The applicants apprehending their arrest in the above crime number preferred an application under section 438 of the Cr.P.C. for grant of anticipatory bail before the Sessions Court, Ambikapur which was rejected. Thereafter the applicants preferred application under Section 438 of Cr.P.C. before this Court which was registered as M. Cr. C. No. 2400/2004 and this Court vide order dated 16/11/2004 allowed the same and granted anticipatory bail to the applicants. However, the said order was to remain in force for a period of two months from the date on which it was passed and the applicants were given liberty to approach the competent Court during the aforesaid period of two months for regular bail under Section 439 of Cr.P.C. to be decided on its own merits. 4. The applicants were arrested in connection with the aforesaid offence on 12-12-2004 but however they were not taken into custody because of the protective umbrella granted by this Court. Thereafter the charge sheet was filed on 24-12-2004 by the police before the CJM, Ambikapur and the application for regular bail under Section 437 of the Cr.P.C. preferred by the applicants was rejected. 5. The applicants moved an application for regular bail in the Sessions Court under Section 439 of Cr.P.C. which was also rejected by order dated 03-01-2005. Thereafter the charge sheet was filed on 24-12-2004 by the police before the CJM, Ambikapur and the application for regular bail under Section 437 of the Cr.P.C. preferred by the applicants was rejected. 5. The applicants moved an application for regular bail in the Sessions Court under Section 439 of Cr.P.C. which was also rejected by order dated 03-01-2005. However from the application under Section 439 of Cr.P.C. filed before the Sessions Court, Ambikapur and the impugned order dated 03-012005, it appears that the applicants were not taken into custody because of the order passed by this Court on 16-11-2004 and thus the present application has been preferred by the applicants on 06-01-2005 for regular bail though they are not in custody. 6. Learned counsel for the applicants submits that even though on the basis of the registered sale deed executed by the complainant the land in question stands mutated in the name of the applicants as per the order of the Panchayat which was passed after due proclamation. The police registered the aforesaid offence and the application for grant of bail has been rejected by the Courts below on some extraneous grounds without considering the observations made by this Court in the order dated 16-11-2004. 7. It is further submitted that no additional incriminating evidence has been collected by the police which was not available in the case diary when the order dated 16-11-2004 was passed by this Court. He further submits that he approached this Court on 06-01-2005 when the order of anticipatory bail granted by this Court was in force. Learned Sessions .Judge even after rejecting the application for regular bail did not take them into formal custody and therefore the applicants should be considered to be in deemed custody as they were present before this Court on that date also. He further submits that on 03-01-2005 also the applicants were present before the Sessions Judge, Ambikilpur though their presence has not been recorded in the order of rejection of bail application. An affidavit to this effect has also been filed by the applicants, 8. He further submits that on 03-01-2005 also the applicants were present before the Sessions Judge, Ambikilpur though their presence has not been recorded in the order of rejection of bail application. An affidavit to this effect has also been filed by the applicants, 8. On the other hand learned counsel for the State/respondent opposes the bail application and submits that even after the expiry of the period for which the protective order granted by this Court, the applicants did not surrender and they are not in custody and thus the present application for regular bail is not maintainable, 9. I have heard learned counsel for the parties. 10. It is not disputed that this Court allowed the application filed by the applicants and granted anticipatory bail to them by order dated 16-11-2004 for a period of two months there from. As per the order of this Court the applicants were arrested and released on bail on 12-12-2004 and thereafter charge sheet was filed by the police on 24-12-2004. On that day also the applicants were not formally arrested even after their application for regular bail was rejected by the concerned Magistrate. Application for regular bail filed by them was also rejected or 03-01-2005 by Sessions Judge. Ambikapur but even on that date they were not taken into formal custody. However the applicants immediately rushed to this Court by way of filing application under Section 439 of Cr. P.C. on 06-01-2005 after the rejection of their application for regular bail by Sessions Judge, Ambikapur. However the above application could not be considered within two months from the date when the order dated 16-11-2004 was passed. 11. From the perusal of the impugned order it is clear that even after the rejection of their application by the Courts below they did not mention that they were required to surrender on apery of the period of two months from 16-11-2004 and therefore the application filed on 06-01-2005 should be maintainable as the applicants were in deemed custody of the Court. Once it is held that the application was maintainable when it was filed on 06-012005, the same cannot be held to be not maintainable subsequently after a lapse of period of two months from the date of order dated 16-11-2004. 12. Learned counsel for the respondent/State relying on the judgment in the matter of Nirmaljeet Kaur Vs. Once it is held that the application was maintainable when it was filed on 06-012005, the same cannot be held to be not maintainable subsequently after a lapse of period of two months from the date of order dated 16-11-2004. 12. Learned counsel for the respondent/State relying on the judgment in the matter of Nirmaljeet Kaur Vs. State of M.P & another submits that the Courts below ought to have taken the applicants into custody after rejecting the application for regular bail. The factual position in the case of Nirmaljeet Kaur (Supra) an application under Section 438 of the Cr.P.C. preferred by the accused was allowed by the High Court with a direction that the accused of that case may approach the appropriate Court within a period of (our weeks for regular bail and as per the direction dated 15-05-2003 the accused filed an application for regular bail before the Judicial Magistrate First Class and thereafter approached the Sessions Court under Sections 437 and 439 of Cr.P.C. However the same were rejected on 05-06-2003 and 07-06-2003 respectively. Thereafter the accused in that case approached the High Court under Section 439 of Cr.P.C. and vide order dated 12-06-2003 the matter was adjourned to 16-06-2003 and on this date the High Court allowed the application and granted ad-interim anticipatory bail for a period of four weeks and against the said order of the High Court the complainant preferred Criminal Appeal in the Apex Court. The Apex Court by the order referred to above allowed the appeal holding that the protection given by the High Court during the pendency of the application under Section 439 of Cr.P.C. is unsustainable and accordingly set aside the order of the High Court and directed respondent No.2 to surrender to the custody as required in law so that the application under Section 439 of Cr.P.C. can be taken up for disposal. 13. Custody has been elaborately defined in the matter of Niranjan Singh and Another Vs. Prabhakar Rajaram Kharote & other which has later been followed in the matter of Nirmal Jeet Kaur Vs. State of M.P. (Supra). Relevant portion is reproduced as under: "7. When is a person in custody, within the meaning of Section 439 Cr.P.C.? 13. Custody has been elaborately defined in the matter of Niranjan Singh and Another Vs. Prabhakar Rajaram Kharote & other which has later been followed in the matter of Nirmal Jeet Kaur Vs. State of M.P. (Supra). Relevant portion is reproduced as under: "7. When is a person in custody, within the meaning of Section 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 court's jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor presidential 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 Section 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibbling and hide and seek niceties sometimes heard in court that the police have taken a man into formal custody but not arrested him, have detained him for interrogation but not taken him in to formal custody, and other like terminological dubieties are unfair evasions of the straight forwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose. 8. Custody, in the context of Section 439, (we are not, be it noted, dealing with anticipatory bail under section 438) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the Court." 14. Thus the custody in context of section 439 has been held is physical control or at least presence of the accused before the Court coupled with the submission to the jurisdiction and orders of the Court. 15. In this case also the applicants are present before the Court in person before their application under section 439 of the Cr.P.C. is considered. 15. In this case also the applicants are present before the Court in person before their application under section 439 of the Cr.P.C. is considered. They have submitted to the jurisdiction and order of this Court and as such they are in custody in context of section 439 of the Cr.P.C and therefore, I do not find any impediment in dealing with this application filed under section 439 of the Cr.P.C. on merits as argued by learned counsel for the respondent/State. 16. Taking into consideration the nature of allegations that the complainant herself executed the registered sale deed and on the basis of such sale deed the land was mutated in the name of the applicants by the Panchayat and the complaint was lodged by the complainant two years and four months after the execution of the said sale deed, I am of the opinion that it is a fit case where the applicants can be granted bail. Accordingly, the application is allowed. It is directed that if the applicants namely Ramdhani Yadav and Radhakrishna surrender before the Registry of this Court and furnish a bail bond of Rs. 20,000/- each with one surety for the like sum, for their appearance before the concerned Court, on or before 2-7-2005, they shall be released on bail. Bail Granted.