Research › Search › Judgment

Andhra High Court · body

2019 DIGILAW 17 (AP)

K. R. Giri Babu v. State of Andhra Pradesh

2019-02-12

T.RAJANI

body2019
ORDER : T. Rajani, J. 1. The parties and the subject-matter of these petitions being same, these petitions are being disposed of by this common order. 2. These petitions are moved by the petitioner, faced by the difficulty and hardship, caused by the alleged tactical move of the police, in not seeking for the custody of the petitioners by filing the Prisoner Transit Warrants (for short, “P.T. Warrant”) in different crimes. 3. The petitioner was shown to have been arrested in different crimes on the file of Railway Koduru Police Station on 7.5.2018 and he was sent for remand on 9.7.2018. The petitioner was granted bail and on 7.5.2018 his confessional statements were recorded in all the crimes. Through the said confessional statements, it came to light that he was involved in 43 cases. In eight cases bail was granted, while in two cases his bail applications are pending. Inspite of the confessional statements being recorded on 7.5.2018, the petitioner was not produced before the concerned Magistrate by filing P.T. Warrants. The wife of the petitioner has given detailed representations on 26.11.2018, to the District Judge, Kadapa and requested for a direction to be given to the concerned police to file P.T. Warrants. As there was no response, the wife of the petitioner has sent representations to all the concerned police stations through RPAD and also sent a representation to the District Judge, Kadapa. She also gave a representation to the District Legal Services Authority with all the details of the crimes, in which me petitioner was shown as accused and requested to file P.T. Warrants. The same was acknowledged by the Legal Services Authority. The petitioner moved bail application before the District Judge, Kadapa under Section 439 Cr.PC, but it was returned with an endorsement that P.T. Warrants and remand reports were not filed. The police officials are not producing the petitioner before the concerned Magistrates in respect of the respective crimes, though they have knowledge of the fact that the petitioner is arrayed as accused. Because of the said action of the police officials, the petitioner is unable to file bail applications in the respective crimes. The police officials are not producing the petitioner before the concerned Magistrates in respect of the respective crimes, though they have knowledge of the fact that the petitioner is arrayed as accused. Because of the said action of the police officials, the petitioner is unable to file bail applications in the respective crimes. The police officials are filing P.T. Warrants in respect of crimes, one after another, only after getting bail in one case, which shows that the officials have an intention to keep the petitioner in custody as long as possible, without affording an opportunity of approaching the Courts, to obtain bail. 4. It is on this premise that the petitioner comes before this Court, seeking for a direction to the respondents to produce the petitioner in the respective crimes, before the competent criminal Courts and to quash the respective endorsements, returning the bail applications of the petitioner and direct the District Sessions Judge, Kadapa to entertain the application for bail, treating the petitioner as being in deemed custody in the respective crimes. 5. Heard the Counsel for the petitioner and the Public Prosecutor appearing for respondents 1 and 2. 6. This Court decided a batch of petitions filed by the accused in Crime No. 117 of 2015 and several other crimes, in which similar issue was involved. One of the prayers of the petitioners therein is to deem the custody of the petitioners therein in one crime, as custody in other crimes, in which neither P.T. Warrant nor remand report is filed, for the purpose of extending the benefit of Section 439 as well as Section 167 Cr.PC. The Court, however, declined to accept the contentions raised with regard to deeming the custody of the petitioners therein, so far as Section 167 Cr.PC is concerned, but held that the petitioners can be deemed to be in custody for the purpose of Section 439 Cr.PC. 7. The Supreme Court, in Sundeep Kumar Bajha v. State of Maharashtra, (2014) 16 SCC 623 , has considered the entire case law on the above aspect. The meaning of the word, 'custody' was arrived at, with reference to the meaning assigned to the word in various dictionaries, and it was held that custody, detention and arrest are sequentially cognate concepts. It held that a person is in custody no sooner he surrenders before the police or before the appropriate Court. The meaning of the word, 'custody' was arrived at, with reference to the meaning assigned to the word in various dictionaries, and it was held that custody, detention and arrest are sequentially cognate concepts. It held that a person is in custody no sooner he surrenders before the police or before the appropriate Court. The spirit with which the Apex Court dealt with the aspect of custody matches the beauty lying in the freedom of an individual. The opinion that, like the Science of Physics, law abhors the existence of vacuum, led the Apex Court to consider the rights of individuals in the interregnum period of the taking of cognizance by the Magistrate and the committal of the case to the Sessions Court. The Apex Court relied on the judgment of the Apex Court in Niranjan Singh v. Prabhakar Rajaram Kharote, (1980) 2 SCC 559 , wherein the Court held that a person can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody, but he can be stated to be in judicial custody when he surrenders before the Court and submits to its directions. The situation similar to the alleged one in this case was also taken note of by the Apex Court in Niranjan Singh's case (supra) and in the following words, it observed as follows: “The equivocatory quibbings and hide-and-seek niceties sometimes heard in Court that 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 dubieties are unfair evasions of straightforwardness of law.” The Apex Court dilated on the said shady facet considering that the accused did physically submit before the sessions Court and the jurisdiction to grant bail arose. Hence, the above would clearly imply that a person need not be brought before the Court by way of a P.T. Warrant or remand warrant for the purpose of seeking bail. His custody in one case can be considered as custody in other cases also in which his arrest was not shown. 8. Hence, the above would clearly imply that a person need not be brought before the Court by way of a P.T. Warrant or remand warrant for the purpose of seeking bail. His custody in one case can be considered as custody in other cases also in which his arrest was not shown. 8. The Apex Court also considered the argument that an outlaw cannot ask for benefit of law and he who flees justice cannot claim justice and held that in a case where the accused surrenders before the sessions Court or a Higher Court, it cannot be said that he is fleeing from justice. This case stands on a better footing, as the petitioner is already in custody though in relation to another crime. 9. The judgment of this Court reported in Tupakula Appa Rao v. State of A.P., 2002 (1) ALD (Crl.) 67 (AP), also dealt with the meaning of the word, “custody”. In that case, a petition was moved for anticipatory bail. The Court declined to grant anticipatory bail holding that the custody of the accused therein in another crime would amount to custody in the said crime also and hence, the question of granting anticipatory bail did not arise, since he is already in custody. The Counsel argues that the corollary of the said ratio would be that a person, who was in custody in one crime can be deemed to be in custody in other crimes also for the purpose of granting bail. This Court relied on the judgment of the Apex Court in Niranjan Singh's case (supra) and at Paragraph 7 of the said judgment, it was held as under: “(7) It is pertinent at the outset to note the connotation of the expression 'custody' for an effective adjudication of the matter. The Apex Court in Niranjan Singh v. Prabhakar (supra), had an occasion to consider the meaning of the term “CUSTODY” appearing in Section 439 of the Code. In Paras 8 and 9 of its judgment, the Apex Court held thus: “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 atleast physical presence of the accused in Court coupled with submission to the jurisdiction and orders of the Court. 9. In Paras 8 and 9 of its judgment, the Apex Court held thus: “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 atleast physical presence of the accused in Court coupled with submission to the jurisdiction and orders of the Court. 9. He can be in custody not merely when the police arrests 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.” 10. In view of the above, there need not be any further demur to hold that the petitioner, who is in custody in different crimes, can be deemed to be in custody pertaining to other crimes, in which he figured as accused. Therefore, the remedy of bail under Section 439 Cr.PC cannot be denied, on the ground that his arrest was not shown in the crime in which he is shown as accused. There can be no reason for the police not to show his arrest in the current crime except for the reason alleged by the petitioner. 11. As regards the deeming of custody vis-à-vis the right of the petitioner to seek statutory bail under Section 167 Cr.PC is concerned, the Counsel for the petitioner does not carry vehemence in his argument, having been persuaded by the right understanding of the language of Section 167 Cr.PC, which specifies that the presence of the accused is necessary for the purpose of extending the detention. 12. In view of the above discussion and also in view of the afore-stated legal position, this Court opines that the impugned endorsements are not sustainable and are liable to be set aside. 13. With the above observations, the criminal petitions are allowed and the respective endorsements in the respective crimes, returning the bail applications of the petitioner by the District and Sessions Judge, Kadapa, are set aside. The District and Sessions Judge is directed to entertain the bail applications filed by the petitioner under Section 439 Cr.PC, subject to the petitioner filing remand report pertaining to the crimes in which he is in custody at present. The District and Sessions Judge is directed to entertain the bail applications filed by the petitioner under Section 439 Cr.PC, subject to the petitioner filing remand report pertaining to the crimes in which he is in custody at present. The Court below shall dispose of the bail applications so filed by the petitioner after giving due notice to the Public Prosecutor, within two weeks from the date of filing of the bail applications by the petitioner. 14. As a sequel, the miscellaneous applications, if any pending shall stand closed.