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2008 DIGILAW 437 (PAT)

Ashok Khirhar v. State of Bihar

2008-02-29

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ORDER The petitioner was granted Police bail under Section 169 Cr.P.C. charge-sheet came to be submitted under Section 307 and other provisions of the Penal Code. His application for anticipatory bail was rejected that since he was already on Police bail; he must appear before the Magistrate and seek regular bail. The Magistrate issued him show cause notice as to why the bail be not cancelled in view of applicability of Section 307 of the Penal Code. The petitioner questioned the same in an application under Section 482 Cr.P.C. This Court in Cr. Misc. No. 46376 of 2005 quashed the show cause notice of the Magistrate and required the petitioner to appear when his application for bail shall be considered on the principles if there had been a misuse of the privilege of bail. He appeared before the Magistrate and was enlarged on bail. 2. An application for cancellation was then filed that the Magistrate had no jurisdiction to grant bail in an accusation under Section 307 of the Penal Code triable by a Sessions Court. This Court in Cr. Misc. No. 1430 of 2006 noticed that it was virtually required to sit in judgment over the order of this Court in Cr. Misc. No. 46376 of 2005 and that it could not do so. The order in Cr. Misc. No. 1430 of 2006 was then assailed before the Supreme Court which set aside the order of the Magistrate granting bail as also the order of this Court. It directed the petitioner to approach the trial court for regular bail. His arrest was stayed for a period of 30 days from the date of the order to enable him to do so. The order of the Apex Court was then modified to substitute the Sessions Judge in place of Magistrate. 3. The petitioner moved the Sessions Judge and appeared before him when the prayer for regular bail came to be rejected on 4.12.2007. Hence, the present application for bail. 4. The only question for consideration at this stage would be, if an application for regular bail would be maintainable by a person, who is not in custody. Consequently, the scope and meaning of the word 'custody' shall necessarily call for consideration. 5. Counsel for the petitioner relied upon a judgment of the Supreme Court in A.I.R. 1980 Supreme Court 785 (Niranjan Singh & Another Vs. Consequently, the scope and meaning of the word 'custody' shall necessarily call for consideration. 5. Counsel for the petitioner relied upon a judgment of the Supreme Court in A.I.R. 1980 Supreme Court 785 (Niranjan Singh & Another Vs. Prabhakar Rajaram Kharote & Ors;) and A.I.R. 1982 Supreme Court 1463 (Free Legal Aid Committee, Jamshedpur Vs. State of Bihar). 6. The meaning of the word 'custody' has been adequately explained in the case of Niranjan Singh (supra) relied upon by the petitioner. It connotes being held by the Investigating Agency under duress, or an order of remand by a Court after he has been taken into physical custody. A person is also deemed to be in custody when he physically offered himself to the Court. This Court considers it proper to quote paragraph 8 of the judgment : "8. Custody, in the context of S. 439, (we are not, be it noted, dealing with anticipatory bail under S. 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." 7. In A.I.R. 2005 Supreme Court 498 (Sunita Devi Vs. State of Bihar & Another) the meaning of custody has been considered in paragraph 15 thereof. The interpretation given in the case of Niranjan Singh (supra) was reiterated. This Court considers it proper to quote paragraph 16 of the same: "16. 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 setting in which it is used and the provisions contained in Section 437 which relates 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. 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 Magistrate can entertain a bail 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. There cannot be any doubt that such appearance before the Magistrate must be physical appearance and the consequential surrender to the jurisdiction of the Court of the Magistrate." 8. Section 437 envisages, inter alia, that the Magistrate may release an accused on bail, if such accused appears before the Magistrate. There cannot be any doubt that such appearance before the Magistrate must be physical appearance and the consequential surrender to the jurisdiction of the Court of the Magistrate." 8. The petitioner in the prayer portion of his application has sought bail to the satisfaction of the Chief Judicial Magistrate and not that of the Sessions Court. That necessarily entails that the case has not been committed to the Court of Session. The order of the Magistrate granting him bail has been set aside. The petitioner is now required to physically appear before the Magistrate. The fact that he may have physically appeared before the Sessions Court directly shall not be deemed to be a physical presence before the Magistrate, surrendering himself to the jurisdiction of law amounting to custody. That will be necessary in order to enable him to maintain application for bail under Section 437 Cr.P.C. in view of the law as discussed above. 9. This Court, therefore, finds no infirmity in the conclusion arrived at by the Sessions Court in its order dated 4.12.2007. 10. The application is dismissed.