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Madhya Pradesh High Court · body

2021 DIGILAW 205 (MP)

Nripal Singh v. State of M. P.

2021-02-23

VISHAL MISHRA

body2021
JUDGMENT : Vishal Mishra, J. 1. The application under Section 439 (2) of Cr.P.C. for cancellation of bail granted by the learned trial Court for offence registered at Crime No. 20/2020, Police Station Rampur Kalan, District Morena under Sections 304-B, 498-A IPC and Section 3 and 4 of the Dowry Prohibition Act. 2. It is argued that criminal case was registered against the respondents no. 2 and 3 for the aforesaid offences. They preferred an application seeking first anticipatory bail before this Court which was registered as M.Cr.C. No. 20231/2020 (Samle alias Sanalia Yadav and another Vs. State of M.P.) and the same was rejected on merits by this Court vide order dated 09.07.2020. Thereafter, another anticipatory application was filed as M.Cr.C. No. 27581/2020 which was allowed on 28.07.2020. Second anticipatory bail was granted to the petitioners for 15 days. 3. It is argued that the respondents no. 2 and 3 have filed an application under Section 439 of Cr.P.C. seeking regular bail before the learned trial Court on 04.09.2020 showing themselves to be in custody. The learned Session Court has called for the case diary and fixed the matter on 05.09.2020. On 05.09.2020, when the case was called up, the respondents no. 2 and 3 were taken in court custody and the application was allowed and they were released on regular bail. It is argued that once they are not in custody, the application filed under Section 439 of Cr.P.C. mentioning that they are in custody is not maintainable. He has drawn attention of this Court to the relevant provision of Section 439 of Cr.P.C. and has argued that the first and foremost condition for maintainability of the application under Section 439 of Cr.P.C. is that the accused should be in custody. The accused is not in custody then the application is not maintainable. He has relied upon the judgments passed in the case of Sundeep Kumar Bafna Vs. State of Maharashtra and Another, 2014 (16) SCC 623 . It is further contended that the learned trial Court has exceeded its jurisdiction and is entertaining the application under Section 439 of Cr.P.C. Despite of the fact that the respondents no. 2 and 3 were not in custody. Learned trial Court, on the date of hearing, has directed the clerical staff to take the respondents no. It is further contended that the learned trial Court has exceeded its jurisdiction and is entertaining the application under Section 439 of Cr.P.C. Despite of the fact that the respondents no. 2 and 3 were not in custody. Learned trial Court, on the date of hearing, has directed the clerical staff to take the respondents no. 2 and 3 in court custody and thereafter has heard the application which is not permissible and contrary to the provision of Section 439 of Cr.P.C. therefore, the application is being filed seeking cancellation of bail. 4. Per contra, learned State counsel has supported the arguments of the petitioner and has submitted that the bail application filed under Section 439 of Cr.P.C. was not maintainable at the time of filing because the accused were not in custody. 5. Counsel appearing for the respondents no. 2 and 3 has opposed all the arguments and has contended that they has preferred an application under Section 438 of Cr.P.C. seeking anticipatory bail. The application was registered as M.Cr.C. No. 27581/2020 and the same was allowed for a period of 15 days vide order dated 28.08.2020 and in pursuance to the order of anticipatory bail, they have already furnished the bail bonds. Thereafter, they have preferred an application on 04.09.2020 under Section 439 Cr.P.C. seeking regular bail. It is argued that the umbrella was already granted by the High Court to the respondents no. 2 and 3 and they were already on anticipatory bail, therefore, they were not required to even surrender at the time of fulfilling the regular bail. It is further pointed out that on the date of hearing of the application i.e. 05.09.2020, the respondents no. 2 and 3 they were taken in judicial custody as reflected from the impugned order. Once they were taken into judicial custody, they are in custody of the court, therefore, the application under Section 439 Cr.P.C. was maintainable. In such circumstances, learned trial Court has not committed any error in allowing the application. They have prayed for dismissal of the petition. 6. Heard the learned counsel for the parties and perused the record. 7. From the perusal of the record, it is not disputed that the respondents no. 2 and 3 were granted umbrella of 15 days by allowing the application under Section 438 Cr.P.C. in M.Cr.C. No. 27581/2020 vide order dated 28.08.2020. They have prayed for dismissal of the petition. 6. Heard the learned counsel for the parties and perused the record. 7. From the perusal of the record, it is not disputed that the respondents no. 2 and 3 were granted umbrella of 15 days by allowing the application under Section 438 Cr.P.C. in M.Cr.C. No. 27581/2020 vide order dated 28.08.2020. In pursuance to the same, they have already fulfilled their bail bonds. 8. The Hon'ble Supreme Court has considered the meaning of custody in the case of Sundeep Kumar Bafna Vs. State of Maharashtra & Another, 2014 (16) SCC 623 and has held as under:- "9. Unfortunately, the terms 'custody', 'detention' or 'arrest' have not been defined in the CrPC, and we must resort to few dictionaries to appreciate their contours in ordinary and legal parlance. 9.1 The Oxford Dictionary (online) defines custody as imprisonment, detention, confinement, incarceration, internment, captivity; remand, duress, and durance. 9.2 The Cambridge Dictionary (online) explains 'custody' as the state of being kept in prison, especially while waiting to go to court for trial. 9.3 Longman Dictionary (online) defines 'custody' as 'when someone is kept in prison until they go to court, because the police think they have committed a crime'. 9.4 Chambers Dictionary (online) clarifies that custody is 'the condition of being held by the police; arrest or imprisonment; to take someone into custody to arrest them'. 9.5 Chambers' Thesaurus supplies several synonyms, such as detention, confinement, imprisonment, captivity, arrest, formal incarceration. 9.6 The Collins Cobuild English Dictionary for Advance Learners states in terms of that someone who is in custody or has been taken into custody or has been arrested and is being kept in prison until they get tried in a court or if someone is being held in a particular type of custody, they are being kept in a place that is similar to a prison. 9.7 The Shorter Oxford English Dictionary postulates the presence of confinement, imprisonment, durance and this feature is totally absent in the factual matrix before us. 9.8. 9.7 The Shorter Oxford English Dictionary postulates the presence of confinement, imprisonment, durance and this feature is totally absent in the factual matrix before us. 9.8. The Corpus Juris Secundum under the topic of 'Escape & Related Offenses; Rescue' adumbrates that 'Custody, within the meaning of statutes defining the crime, consists of the detention or restraint of a person against his or her will, or of the exercise of control over another to confine the other person within certain physical limits or a restriction of ability or freedom of movement.' This is how 'Custody' is dealt with in Black's Law Dictionary, (9th ed. 2009):- "Custody-The care and control of a thing or person. The keeping, guarding, care, watch, inspection, preservation or security of a thing, carrying with it the idea of the thing being within the immediate personal care and control of the person to whose custody it is subjected. Immediate charge and control, and not the final, absolute control of ownership, implying responsibility for the protection and preservation of the thing in custody. Also the detainer of a man's person by virtue of lawful process or authority. The term is very elastic and may mean actual imprisonment or physical detention or mere power, legal or physical, of imprisoning or of taking manual possession. Term "custody" within statute requiring that petitioner be "in custody" to be entitled to federal habeas corpus relief does not necessarily mean actual physical detention in jail or prison but rather is synonymous with restraint of liberty. U.S. ex rel. Wirtz v. Sheehan, D.C. Wis, 319 F. Supp. 146, 147. Accordingly, persons on probation or released on own recognizance have been held to be "in custody" for purposes of habeas corpus proceedings." 9. From the perusal of the aforesaid dictum of the Hon'ble Supreme Court, it is apparently clear that Sundeep Kumar Bafna Vs. State of Maharashtra & Another, 2014 (16) SCC 623 . It is apparently clear that the persons taken in custody of the Court can be said to be judicial custody and thereafter, the application under Section 439 of Cr.P.C. is maintainable. Admittedly, the bare reading of Section 439 Cr.P.C. clearly says that the accused/applicant should be in custody at the time of applying for regular bail but in the present case, the circumstances are with different. Admittedly, the bare reading of Section 439 Cr.P.C. clearly says that the accused/applicant should be in custody at the time of applying for regular bail but in the present case, the circumstances are with different. The accused/petitioners has preferred an application under Section 438 Cr.P.C. and they were enlarged on anticipatory bail for a period of fifteen days. At the time of applying for regular bail before the learned trial court and in pursuance to the order passed by the High Court granting 15 days anticipatory bail, he has fulfilled the terms and conditions and has furnished the bail bonds. At the time of filing an application under Section 439 Cr.P.C. they have 15 days umbrella granted by this Court. At the time of hearing when the application came up for hearing, they were taken into judicial custody and thereafter the application was heard. It is clearly reflected from the impugned order. In such circumstances, it cannot be said that the petitioners were not in custody at the time of filing of the application. They were protected by the umbrella granted by this Court for a period of 15 days. It is not a case that after expiry of the fifteen days period they have applied for regular bail. In such circumstances, the learned trial court has not committed any error in passing the impugned order and considering the application under Section 439 Cr.P.C. treating it to be maintainable. 10. From the aforesaid analysis, the facts and the circumstances of the case and also the dictum of the Hon'ble Supreme Court, the present application is not maintainable. The application sans merits and is accordingly dismissed. Certified copy as per rules.