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2006 DIGILAW 539 (JHR)

Punam Arya v. State Of Jharkhand

2006-05-04

N.N.TIWARI

body2006
ORDER Narendra Nath Tiwari, J. 1. In this case the learned Court below has rejected the application for ball of the petitioner, who has earlier surrendered before the trial Court and furnished bail bond in compliance of the order of anticipatory bail, observing that since the petitioner is not in custody, application for regular bail under Section 439 of the Code of Criminal Procedure is not maintainable. A question arises in this case is as to whether a person, who has surrendered before the Court and furnished bail bond in compliance of the order of the anticipatory bail and is still under the period of protection of anticipatory bail, can be said to be in custody within the meaning of Section 439 of the Code of Criminal Procedure. Section 439 of the Code of Criminal Procedure reads thus: 439. Special powers of High Court or Court of Session regarding bail.-(1) A High Court or Court of Session 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; Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. 2. From bare reading of the section it appears that for an application for regular bail a person must be in custody. (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. 2. From bare reading of the section it appears that for an application for regular bail a person must be in custody. The question is as to whether a person who is in jail can only be said to be in custody or whether a person who had appeared and surrendered before the Court and furnished bail bond can be also said to be in custody for the purpose and within the meaning of Section 439 of the Code of Criminal Procedure? The said question fell for consideration of the Honble Supreme Court in Niranjan Singh v. Prabhakar Rajaram Kharote . In paragraph 7 of the said judgment the Supreme Court held as follows: 7. When is a person in custody, within the meaning of Section 439, CrPC? 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 con- elusion 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. 3. Further the Apex Court held in paragraph 9 of the said judgment: 9. He can be in custody not merely when the police arrests him, produced 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. 4. The same view was reiterated by the Supreme Court in Nirmal Jeet Kaur v. State of M.P. and Anr. . Again in Sunita Devi v. State of Bihar and Anr. . 5. He can be stated to be in judicial custody when he surrenders before the Court and submits to its directions. 4. The same view was reiterated by the Supreme Court in Nirmal Jeet Kaur v. State of M.P. and Anr. . Again in Sunita Devi v. State of Bihar and Anr. . 5. In Sunita Devi (supra) while making the reference of the said decision of the Apex Court in Niranjan Singh v. Prabhakar Rajaram Kharote (supra), in paragraph 15 of the decision, the Honble Court held as follows: Since the expression custody though used in various provisions of the Code including Section 439, has not been defined in the Code, it has to be understood in the setting in which it is used and the provisions contained in Section 437 which relate to jurisdiction of the Magistrate to release an accused on bail under certain circumstances which can be characterized as "in custody" in a generic sense. 6. It has been further held that the expression "custody" as used in Section 439 must be taken to be a compendious expression referring to the events on the happening of which the Magistrate can entertain a ball petition of an accused. Section 437 envisages, inter alia, that the Magistrate may release an accused on bail, if such accused appears before the Magistrate. 7. After going through the above referred decision of the Supreme Court, it is clear that if the accused is not absconding, the accused, who appeared and surrendered before the Court and furnished bail bond, he is under the control of the Court having offered himself to the Courts Jurisdiction, submitted to its orders by physical presence, or the person, 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 of the Code of Criminal Procedure. Thus, a person is not only in custody when the police arrests him or produces him before the Magistrate for remands or other custody but a person who surrenders before the Court and submits to its directions is also in custody within the meaning of Section 439 of the Code of Criminal Procedure. 8. In the instant case, the petitioner was granted anticipatory bail for a period which was extended up to 30.4.2006. 8. In the instant case, the petitioner was granted anticipatory bail for a period which was extended up to 30.4.2006. During the said period the petitioner had prayed for regular bail before the learned Additional Chief Judicial Magistrate, Bermo on 12.4.2006 which was rejected. The petitioner, then, moved for regular bail before the learned Sessions Judge who by his order dated 22.4.2006 rejected the petitioners application on the ground that unless a person is in custody physically, an application for bail under Section 439, CrPC would not be maintainable. Though learned Court below has mentioned the decision of the Supreme Court in Nimal Jeet Kaur as also Sunita Devi, (supra), yet learned Sessions Judge failed to take notice of the proposition of law settled by the Supreme Court in those decisions holding that a person who is under the control of the Court or who has surrendered before the Court and submitted to its directions is also in custody within the meaning of Section 439 of the Code of Criminal Procedure. As the petitioner had already surrendered and furnished bail bonds in compliance of the order of the anticipatory bail and was under control of the Court when she had moved an application for regular bail and for that purpose she can be stated to be in custody within the meaning of Section 439 of the Code of Criminal Procedure. Learned Sessions Judge should not have thus rejected the petitioners bail application holding the same not maintainable on the ground that the petitioner was not in custody physically at the time of filing the bail application under Section 439of the Code of Criminal Procedure. 9. So far as the merit of the petitioners application for regular bail is concerned, she is an accused in a case registered under Sections 407, 409, 379 and 120-B of the Indian Penal Code. 10. Learned Counsel for the petitioner submitted that the petitioner is a lady and is the registered owner of truck No. BR 13C 1313; she has absolutely got no connection with the alleged consignment. It has been submitted that her vehicle was never engaged by the so-called transporter and the number of her said truck was deliberately mentioned with a motive to falsely implicate her in the case; no incriminating article has been recovered from her possession. It has been submitted that her vehicle was never engaged by the so-called transporter and the number of her said truck was deliberately mentioned with a motive to falsely implicate her in the case; no incriminating article has been recovered from her possession. Learned Counsel submitted that the case is of the year 1998 and the warrant was issued after several years without any sufficient or cogent material against the petitioner, the petitioner has a small baby in her arms; she is permanent local resident of the place within the jurisdiction of the Court below and there is no chance of her absconding. He further submitted that the petitioner was earlier granted anticipatory bail for a fixed period on consideration of the nature of allegations and the materials available on record at that point of time and no further cogent material has been collected against her and as such she deserves the privilege of regular bail. 11. Learned APP contested the bail application and submitted that the allegations against the petitioner go to constitute the alleged offences as she is the owner of the truck which had been allegedly engaged for the purpose of transporting the alleged consignment and as such the petitioner is not entitled to be enlarged on bail. 12. Considering that the petitioner is a lady with a small baby in her lap and that no incriminating article has been recovered from her possession and also that the case is of the year 1998 and after several years warrant has been issued and that too is not supported by any cogent material against her and also that she is a local permanent resident, there is no chance of her absconding the petitioner, namely, Punam Arya is granted regular bail on furnishing bail bond of Rs. 50.000/- (Rupees Fifty Thousand) with two sureties of the like amount each to the satisfaction of the Judicial Magistrate, Bermo at Tenughat in connection with Gomia Police Station Case No. 96 of 1998 corresponding to G.R. No. 892 of 1998 and T.R. No. 794 of 2004 with the further condition that during the pendency of the case before the trial Court, the petitioner shall not transfer the truck in question.