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2010 DIGILAW 29 (MP)

SONU @ SHAHAZAD v. STATE OF MP.

2010-01-08

K.G.MISHRA

body2010
Judgment R.C.Mishra, J. ( 1. ) Arguments heard. This is an application for extension of period of anticipatory bail granted to the applicant, vide order-dated 17/9/09 passed in MCrCNo.9398/2009 in the wake of his apprehension of arrest in connection with Crime No.419/2009 registered at City Kotwali Chhatarpur in respect of the offences punishable under Sections 148 and 307 read with 149 of the IPC. ( 2. ) The relevant extract of the order reads - "This order shall remain in force for a period of 60 days and in the meanwhile, if the applicant so desires, may move an application for regular bail before the competent Court, which shall be considered by the Court in accordance with law". ( 3. ) According to the applicant, his application for regular bail, though submitted on 10/11/09, could not be considered on merits for want of case diary. For this, reference has been made to contents of corresponding order-sheets indicating that after obtaining repeated adjournments on the ground that it had not been received back from the office of the Advocate General, the SHO of Kotwali was able to produce the case diary on 08/12/09 only. ( 4. ) While opposing the prayer, learned Govt. Advocate has submitted that bail application could not be considered so far in view of the fact, as indicated by learned Special Judge in the order-dated 08/12/09, that the applicant had not surrendered to custody even after expiry of the period of anticipatory bail. ( 5. ) In response, learned Senior Counsel has pointed out that as per the practice developed in the Courts of Session in the State, in the light of the decision of a coordinate Bench of this Court in Rajul Rajendranath Dubey v. State of M.R (2006 (3) MPHT65), the applicant did not prefer to - (a) surrender to custody before filing the application for grant of regular bail or (b) remain present before the Court at the time of its hearing. ( 6. ) He has also posed a significant question for consideration as to what would happen in a case where as a law-abiding citizen, an accused surrenders to custody but his application for grant of regular bail is not considered on merits for want of case diary. ( 7. ) The decision in Rajuls case (above) contemplates two . ( 6. ) He has also posed a significant question for consideration as to what would happen in a case where as a law-abiding citizen, an accused surrenders to custody but his application for grant of regular bail is not considered on merits for want of case diary. ( 7. ) The decision in Rajuls case (above) contemplates two . different approaches to be adopted by the Court of Session and the High Court while dealing with an application under Section 439 of the Code of Criminal Procedure (for short the Code) for grant of regular bail to an accused enjoying liberty of release on anticipatory bail. The relevant observations may be reproduced as under- "when an accused on anticipatory bail makes an application for regular bail, either under Section 437 or 439 of the Code, it is not necessary by reason of umbrella over him that either he should be present or should be in custody for consideration of his regular bail application. But, once such application is rejected and either he is not taken into custody or moves out of the custody of the Court for any reason, the application under Section 439 of the Code made to Higher Court, which may either be the Court of Sessions or the High Court, as depending in the individual case, is not then maintainable ". ( 8. ) A close analysis of the decision would reveal that it contained reference to an earlier decision rendered by the same Bench in Sunil Gupta v. State of M.P. 2005 (3) MPHT272 and the negative answers given by a Division Bench of this Court in Brijesh Garg@Poda v. State of M.P. (MCrCNo.4984/2005 decided on 18.08.2005) to the questions as to – (i) whether the protective umbrella granted under the anticipatory bail order can be claimed by an accused whose application for regular bail is rejected by the Court of Session and in such a situation, whether his application under Section 439 of the Code would be maintainable before the High Court ? (ii) whether the accused who has been enlarged on anticipatory bail for a limited duration and whose application for regular bail is rejected by the Court of Session but at the time of consideration of his application, either he was not present before the Court or had moved out of the custody of the Court, whether his application under Section 439 of the Code would be maintainable before the High Court ? ( 9. ) It is relevant to note that in Sunil Gupta s case (supra), the legal position as explained by the Apex Court in Nirmal Jeet Kaur v. State of M.P. (2004) 7 SCC558 and reaffirmed in Sunita Devi v. State of Bihar (2005) 1 SCC608 was also taken into consideration. However, none of these precedents had recognized maintainability of an application under Section 439 of the Code of a person who is not in custody irrespective of whether he is under the protective umbrella of Section 43 8 of the Code or not. ( 10. ) Further, in State of Haryana v. Dinesh Kumar 2008 AIR SCW696, the Supreme Court, though in a different context, while dis-approving the contrary view taken by a full Bench of Madras High Court in Roshan Beevi v. Joint Secretary to Govt, of Tamil Nadu 1984 CriLJ134 on the question as to what constitutes arrest and custody in relation to criminal proceedings, quoted with approval the following observations made by Justice V.R. Krishna Iyer, in his inimitable style, in the case of Niranjan Singh v. Prabhakar Rajaram Kharote AIR 1980 SC785 - " When is a person in custody, within the meaning of S. 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 S.439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory 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 dubiotics are unfair evasion of the straightforwardness 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. Custody, in the context of S.439, is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and order of the court. He can be in custody not merely when the police arrest 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..................." ( 11. ) The word custody was used with the same meaning in Nirmal Jeet Kaurs case (supra). The basic rule, as propounded therein and re-affirmed in Sunita Devis case (above), "that an application, under Section 439 of the Code for grant of bail, would not be maintainable unless a person is in custody", has been approved by the Supreme Court in all subsequent decisions on the point including Naresh Kumar Yadav v. Ravindra Kumar AIR 2008 SC218 and Vaman Narain Ghiya v. State of Rajasthan (2009) 2 SCC281. ( 12. ) In Naresh Kumar Yadavs case, the Apex Court proceeded to add - "In Nirmal Jeet Kaurs case and Sunita Devis case, certain grey areas in K.L. Verma v. State, (1998) 9 SCC348 were noticed. The same related to the observation or even a few days thereafter to enable the accused persons to move the higher court, if they so desire. It was held that the requirement of Section 439 of the Code is not wiped out by the above observations. Section 439 comes into operation only when a person is in custody. In K.L. Vermas case, reference was made to Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996) 1 SCC667. It was held that the requirement of Section 439 of the Code is not wiped out by the above observations. Section 439 comes into operation only when a person is in custody. In K.L. Vermas case, reference was made to Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996) 1 SCC667. In the said case there was no such indication as given in K.L. Vermas case, that a few days can be granted to the accused to move the higher court if they so desire. The statutory requirement of Section 439 of the Code cannot be said to have been rendered totally inoperative by the said observation. ( 13. ) Needless to say that subordinate Courts are bound to follow the decision of the High Court only when there is no apparently contrary view expressed by the Apex Court on the point. ( 14. ) The legal position that emerges on a broad conspectus of these decisions rendered by the Supreme Court, may be summed up in the following words - "an application under Section 439 of the Code for grant of bail can be considered only when the accused is in custody, meaning of which has been explained in Niranjan Singhs ease (ibid), irrespective of whether the period of anticipatory bail has expired or not." ( 15. ) In other words, even though, an application for grant of regular bail on behalf of an accused, enjoying liberty of release on anticipatory bail, may be presented through a counsel yet, it can be heard and decided only when he is in custody. ( 16. ) The ideal situation would be that an application for regular bail must be considered and disposed of on merits as expeditiously as possible in view of the pre-condition as to custody and no adjournment should be asked for by the public prosecutor on the ground of non-availability of the case diary. Moreover, in order to enable production of the case diary on the date of hearing, the accused may also disclose, in his bail application, the date of his proposed surrender to custody at least 3 days in advance (See. Naresh Kumar Yadavs case (above). ( 17. Moreover, in order to enable production of the case diary on the date of hearing, the accused may also disclose, in his bail application, the date of his proposed surrender to custody at least 3 days in advance (See. Naresh Kumar Yadavs case (above). ( 17. ) This apart, as observed by the Apex Court in Kamlendra Pratap Singh v. State of U.P. 2009 (4) Scale 77, the Court hearing the regular bail application has inherent power to grant interim bail pending final disposal of the regular bail application. Accordingly, in case, the accused-applicant along with his regular bail application also applies for interim bail on the ground of non-availability of the case diary, the Court concerned should hear and decide the interim bail application on the same day. ( 18. ) Adverting to the application under consideration, it may be observed that the applicant has been able to establish a reasonable ground for extension of the period of anticipatory bail. ( 19. ) Subject to these clarifications, the application stands allowed and the period of anticipatory bail order-dated 1.7/09/2009 is hereby extended up to 27/01/2010. Application allowed.