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2006 DIGILAW 1126 (JHR)

D. K. Shrivastava v. State of Jharkhand

2006-08-28

R.R.PRASAD, SUDHANSU JYOTI MUKHOPADHAYA

body2006
JUDGMENT : R.R. Prasad, J. This application purported to be under Sections 439 and 440 of the Code of Criminal Procedure has been filed for grant of bail to the petitioner in connection with Latehar P.S. Case No. 50 of 1998 instituted under Sections 467, 468, 471, 406, 409, 420 and 120-B of the Indian Penal Code. 2. The facts giving rise this application, in brief, are that Divisional Forest Officer, State Trading Division II, Latehar lodged the case alleging therein that one V.K. Sinha, the then Divisional Forest Officer of Latehar State Trading Division II during his tenure from 1990-93 in connivance with other staff of the Department defalcated Government money to the tune of Rs. 43 lakh and odd by showing fake purchase of materials from fake dealers by manufacturing forged and fabricated vouchers/receipts. 3. The petitioner, who happened to be an accountant in the Department having been apprehensive of being arrested in connection with the said case moved for anticipatory bail before this Court, vide A.B.A. No. 741 of 2005 which was allowed by a Bench of this Court, vide order dated 23.11.2005 in the following terms : "Considering the facts and circumstances, the petitioner, above named, in the event of arrest or surrender within three weeks from today, shall be released on bail on furnishing bail bond of Rs. 50,000/- (fifty thousand) with two sureties of the like amount each to the satisfaction of arresting authority and/or Chief Judicial Magistrate, Latehar in connection with Latehar P.S. Case No. 50 of 1998, G.R. No. 132 of 1998, subject to conditions as laid down under Section 438(2) of the Code of Criminal Procedure and the bailors must be the Government servants of the State of Jharkhand and the petitioner shall fully co-operate with the investigating agency and make himself available as and when his presence is required for that purpose. This order shall be in force for a period of six months and in the meanwhile, the petitioner will be at liberty to pray for regular bail before the Court below." Pursuant to that order petitioner seems to have surrendered in the Court and on furnishing bail bond was released. Thereafter, on 18.5.2006 the petitioner without surrendering filed an application before the Court of Chief Judicial Magistrate. Thereafter, on 18.5.2006 the petitioner without surrendering filed an application before the Court of Chief Judicial Magistrate. Latehar for grant of bail by taking plea that in view of the order passed by the High Court it is not necessary for the petitioner to surrender before the Court. However, the said application for bail was rejected by the Court of Chief judicial Magistrate, Latehar. Thereafter, before moving any application for bail in terms of Section 439 of the Code of Criminal Procedure, the petitioner filed this bail application purported to be under Section 439 of the Code of Criminal Procedure. 5. When the matter was place before a Single Bench, it was contended that in spite of the fact that petitioner did not surrender before the Court below, the application for bail filed under Section 439 of the Code of Criminal Procedure is maintainable in view of the decision rendered by this Court in a case of Punam Arya v. State of Jharkhand, 2006 (3) JCR 276 (Jhr). 6. However, learned single Judge having taken notice of two decisions of the Supreme Court rendered in a case of Nirmal Jeet Kaur v. State of Madhya Pradesh & Anr., (2004) 7 SCC 558 and in a case of Sunita Devi v. State of Bihar & Anr., 2005 (1) East Cr C 1 (SC) : (2005) 1 SCC 608 , perhaps doubted the correctness of the decision rendered in a case of Punam Arya v. State of Jharkhand and hence, the matter was ordered to be placed before the Acting Chief Justice and, when the matter was placed before one of us in the administrative side, it was referred before a Division Bench and that is now the matter was placed before us. 7. Learned counsel appearing for the petitioner submitted that petitioner having been granted anticipatory bail by this Court on 23.11.2005 in A.B.A. No. 741 of 2005 did produce himself before the Court below and furnished the bail bond and thereby put himself under the control of the Court and hence, petitioner would be deemed to be in custody for the purpose of Section 437 as well as Section 439 of the Code of Criminal Procedure and hence, application for bail filed before the Court below as well as application filed before this Court under Section 439 of the Code of Criminal Procedure is quite maintainable. Learned counsel in support of his submission has put his reliance heavily on a decision rendered in a case of Punam Arya v. State of Jharkhand (supra) and also in a decision rendered in a case of Niranjan Singh & Anr. v. Prabhakar Rajaram Kherote & Ors., (1980) 2 SCC 559 , to drive his point home that petitioner having offered himself to the Court's decision and submitted to its order by physical presence be deemed to be in custody and, therefore, this application for bail is quite maintainable, even though petitioner is not in physical custody of the Court. 8. As against this, learned counsel appearing for the State submitted that petitioner though did surrender pursuant to the direction of this Court given in the anticipatory bail application and furnished bail bond, but he, in any view of the matter, cannot be said to be in the custody of the Court in terms of Section 437/439 of the Code of Criminal Procedure. 9. Thus, the issue which falls for our consideration is as to whether petitioner though surrendered in the Court below, pursuant to direction of this Court passed in anticipatory bail application can be said to be in custody in terms of Section 437 of the Code of Criminal Procedure and also for the purpose of Section 439? Before adverting to the submissions advanced on behalf of the parties provision as enshrined in Section 439 of the Code of Criminal Procedure needs to be taken notice of which reads as follows : 439-(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; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified. 10. From bare reading of the provisions it appears that before making an application in terms of Section 439 of the Code a person has to be in custody. Expressions custody appears to have been used in various provisions of the Code including under Section 439 but it has not been defined anywhere in the Code. 10. From bare reading of the provisions it appears that before making an application in terms of Section 439 of the Code a person has to be in custody. Expressions custody appears to have been used in various provisions of the Code including under Section 439 but it has not been defined anywhere in the Code. The provisions contained in Section 437 relates to jurisdiction of the Magistrate to release an accused on bail under certain circumstances which in its generic sense can be characterized as in custody. The question naturally comes to the mind as to when a person can be said to be in custody within the meaning of Section 439 of the Code. 11. The submission, based on the decision rendered by this Court in a case of Punam Arya v. State of Jharkhand (supra), that the petitioner would be deemed in custody as soon as he did produce himself in the Court and filed bail bond never appears to be sound on principle as well as on precedents. If the submission is accepted, it would lead to the anomalous situation in the manner that in one case like the present one, one would never be in physical custody if the application for bail filed either under Section 437 or 439 is rejected. whereas in other case where one surrenders before moving an application either under Section 437 or 439 will remain in physical custody if the prayer for bail is rejected. Thus, if the argument advanced on behalf of the petitioner is accepted two different situations emerge out if the meaning of the custody given in Section 439 is extended in the light of the submissions advanced on behalf of the petitioner and as such it cannot be acceptable. Moreover, if the meaning of the custody is extended to the extent as sought for then there would have been no distinction in between the provision of Sections 438 and 439 of the Code of Criminal Procedure. 12. So far precedents are concerned the submission as aforesaid on behalf of the petitioner never seems to be in consonance with the decisions rendered in this respect by the Apex Court. 13. 12. So far precedents are concerned the submission as aforesaid on behalf of the petitioner never seems to be in consonance with the decisions rendered in this respect by the Apex Court. 13. The question when a person can be said to be in custody within the meaning of Section 439 of the Code of Criminal Procedure came up for consideration before the Supreme Court in a case of Niranjan Singh & Anr. v. Prabhakar Rajaram Kharote & Ors. (supra). Before noticing the amplitude of the expression 'custody' expressed in the said decision the fact of that case needs to be taken notice of so as to meaning of the custody expressed by their Lordships be understood fully. A complaint case was lodged alleging therein that some policemen waylaid the brother of the complainant and was shot dead. The Court after holding enquiry did find sufficient ground to proceed with the case and hence, issued non-bailable warrant for their production. The accused persons appeared and moved for bail which was rejected but they were not taken into custody. However, before the Sessions Judge accused persons did surrender and prayed for bail which was granted. When the complainant moved before the High Court the order granting bail was not interfered with rather some conditions were ordered to be added with the condition imposed by the Sessions Judge. When the matter was brought before the Supreme Court on behalf of the complainant it was argued on behalf of the complainant-petitioner that when accused persons were granted bail, they were not in custody and, therefore, the Court below as well as High Court committed illegality. This submission led the Court to decide the expression 'custody' given in the code with reference to Section 439. The Supreme Court was very critical on the action of the Magistrate who in spite of rejecting the prayer for bail allowed the accused to circumvent the principle of Section 439 of the Code of Criminal Procedure. This submission led the Court to decide the expression 'custody' given in the code with reference to Section 439. The Supreme Court was very critical on the action of the Magistrate who in spite of rejecting the prayer for bail allowed the accused to circumvent the principle of Section 439 of the Code of Criminal Procedure. However, having noticed that the accused persons before moving bail had surrendered before the Sessions Court did not interfere with the order granting bail and the aforesaid situation led the Supreme Court to deal with the matter of the expression 'custody' within the meaning of Section 439 of the Code of Criminal Procedure and held that the person can be said to be taken into custody in following conditions : (i) when he is in duress either because he is held by the investigating agency or other police or allied authority; or (ii) under the control of the Court having been remanded by judicial order; or (iii) having offered himself to the Court's jurisdiction and submitted to its order by physical presence. Further their Lordships stretched the meaning of the judicial jurisdiction which was expressed in the terms that judicial jurisdiction arises only when persons are already in custody and seek the process of the Court to be enlarged. Their Lordships went further to say that no person accused of an offence can move the Court for bail under Section 439 of the Code of Criminal Procedure unless he is in custody. The aforesaid proposition laid down was subsequently followed in a case of Nirmal Jeet Kaur v. State of Madhya Pradesh & Anr. (supra), where the same question fell for consideration as to what is the meaning of the expression 'custody' in terms of Section 439 on the fact of the case that on the lodgment of a case under Section 498-A against respondent No. 2 by the appellant, respondent No.2 was granted anticipatory bail by the High Court of Madhya Pradesh for a limited period with a direction that the petitioner may approach the appropriate Court within the period of four weeks for regular bail. Thereafter, respondent No.2 applied for regular bail before the Court below which was rejected and ultimately application for bail in terms of Section 439 was filed before the High Court and while the application filed in terms of Section 439 of the Code of Criminal Procedure was pending, another application was filed before the High Court whereby an ad interim anticipatory bail was allowed and that matter was challenged before the Supreme Court on the ground that when the period of anticipatory bail granted by the High Court was over, the High Court committed illegality by granting blanket order extending ad interim arrangement when respondent No. 2 was not in custody in terms of Section 439 of the Code. On the other hand, it was submitted on behalf of the respondent that though the application under Section 439 was pending before the Court there has been no illegality in extending the interim anticipatory bail order as it is not a pre condition for the person being taken into custody for moving application under Section 439. However, the Supreme Court after taking into consideration the decision rendered in a case of Niranjan Singh & Anr. v. Prabhakar Rajaram Kharote & Ors. (supra), did hold that for making an application under Section 439 the fundamental requirement is that the accused should be in custody and that unless the applicant is in custody making an application under Section 439 of the Code will not confer jurisdiction on the Court to which the application is made and, therefore, the Supreme Court set aside the order by which interim protection was given to the respondent and the respondent was directed to surrender to custody so that application under Section 439 of the Code can be taken for disposal. Subsequently, when the similar matter again fell for consideration before the Supreme Court in a case of Sunita Devi v. State of Bihar & Anr. (supra), the same proposition was laid down regarding expression 'custody' by holding that unless the applicant is in custody making an application under Section 439 of the Code will not confer jurisdiction on the Court to which the application is made. 14. (supra), the same proposition was laid down regarding expression 'custody' by holding that unless the applicant is in custody making an application under Section 439 of the Code will not confer jurisdiction on the Court to which the application is made. 14. Thus, the submission advanced on behalf of the petitioner on the basis of a decision of this Court rendered in a case of Punam Arya v. State of Jharkhand (supra), that petitioner be deemed to have surrendered in the Court when he had filed bail bond, pursuant to the direction of the High Court cannot be said to be in custody as simply by custody in terms of Section 439 and therefore, this application is held to be not maintainable and it is dismissed. Application dismissed.