Chaudhary Jitendra Nath alias Jitendra Chaudhary and Another vs State of U.P.

N.L. Ganguly, J.—This application by the two applicants u/s 482 Code of Criminal Procedure has been filed against the order of II Additional Sessions Judge, Mirzapur dated 20-3-1991 in the Bail Application No. 144 of 1991 Chaudhary Jitendra Nath v. State and Application No. 145 of 1991 Shailendra Kumar alias Shailendra Chaudhary v. State. The learned Additional Sessions Judge refused to consider the bail application u/s 439 Code of Criminal Procedure on the ground that the accused/Applicants were not in custody on the remand order passed by the Court at Mirzapur. He considered this fact as a ground which do not confer jurisdiction for him to consider the bail application.

The applicants were arrested in a case u/s 60 of Excise Act on 18-2-91 and they were arrested by the Police at Allahabad and sent to the jail custody. The applicants are still confined in jail custody at Allahabad. The applicants were also wanted in a Criminal case u/s 302/307 IPC of P.S. Kotwali Katra, Mirzapur in Crime No. 34 of 1991. The FIR of the said case is dated 14-2-91. Since the applicants were detained at Allahabad, the information was sent to the Mirzapur Police and Court that the accused/Applicants are detained at Naini Central Jail, Allahabad. When the matter for consideration of the bail application on behalf of the applicants in Mirzapur Court came up, an objection was raised by the State Counsel that the application is not maintainable, since the accused/applicants have not surrendered before the Mirzapur Court nor there is any order for remand passed by the Magistrate of Mirzapur. It was urged before the learned Sessions Judge that the mere fact that the accused/applicants are detained in some other case at Central Jail Naini, Allahabad, that would not mean that the accused/applicants are confined in custody. On the basis this argument that the applicants are not in custody, the bail application was rejected. The learned Sessions Judge accepted the argument of the D.G.C. (Criminal) there and rejected the application on the ground that the case is not covered u/s 439 Code of Criminal Procedure unless the applicants surrender or is confined in the jail custody on the basis of a remand order passed by the Magistrate Court.

After hearing the learned Counsel for the applicant and the examining the Supreme Court decision Niranjan Singh and Another Vs. Prabhakar Rajaram Kharote and Others, . I consider that the orders of the learned Sessions Judge impugned is patently erroneous. The Hon''ble Supreme Court in the aforementioned case considered this aspect directly. The observations are quoted as under:

When is a person in custody within the meaning of Section 439 Code of Criminal Procedure? - 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 court''s 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 concercive power is in custody for the purpose of Section 439. This word is of elastice 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 evasions of the straight forwardness 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 Section 439 (we are not, be it noted, dealing with anticipatory bail u/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.

In view of the settled law, on the point, I consider that this petition u/s 482 Code of Criminal Procedure is liable to be allowed. The learned Additional Government Advocate also argued that the case and has not been able to cite any other case to controvert the legal position submitted by Sri Virendra Saran. In the circumstances, the 482 Code of Criminal Procedure petition is allowed. The orders dated 20-3-91, passed by the II Additional Sessions Judge, Mirzapur are quashed. It is directed that the learned Additional Sessions Judge, Mirzapur may hear the applications of the applicants for bail afresh treating them the applicants to be in custody and application for bail fully covered under the provisions of Section 439 Code of Criminal Procedure. The bail applications may be decided according to law at an early date.

With these observations, the petition is allowed.

A copy of the order be given to the learned Counsel for the applicant within three days on payment of usual charges.