Pritam Singh vs Daljit Singh etc.

Sat Pal, J.

This case has come up before this Bench on a reference made by the learned Single Judge of this Court vide his order dated 11.7.1996 on the following point :

"Whether respondentaccused Daljit Singh was in custody in terms of Section 439 of the Code of Criminal Procedure (in short Cr.P.C.) when the order dated 17.11.1995 granting bail to the said accused was passed by the learned Sessions Judge, Hoshiarpur."

A case under Sections 306 and 498A IPC was registered against respondent Daljit Singh and his son Jasbir Singh at Police Station Dasuya on 23.8.1995. Accused Daljit Singh filed an application bearing Crl. Misc. No. 16237M of 1995 under Section 438 Cr.P.C. for grant of anticipatory bail in this Court. But this application was dismissed by the learned Single Judge on 21.9.1995. Thereafter accused Daljit Singh filed another application bearing Crl.Misc. No. 18337M of 1995 under Section 438 Cr.P.C. for the same purpose. This application came up for hearing before the learned Single Judge of this Court on 10.11.1995 and following orders were passed on this application :

"Present: Mr. R.K. Joshi, Advocate.

After hearing the learned counsel for the petitioner no case for anticipatory bail is made out and the prayer for the same is declined. However, the petitioner may approach the Court of the concerned Magistrate for regular bail and the day the application for bail is moved before the Court of the Magistrate, the same shall be heard and disposed of the same day. In the case the learned Magistrate declines the bail, the petitioner will be at liberty to apply before the Sessions Court for bail the same day and the Sessions Court will also hear and dispose of the application on the same day. The petitioner is allowed to approach the Courts aforesaid upto 20.11.1995 and till then he shall not be arrested."

In terms of the above mentioned order passed by this Court, arrest of respondent Daljit Singh was stayed upto 20.11.1995 and he was permitted to approach the Court of concerned Magistrate for regular bail and in case the application for regular bail was dismissed by the concerned Magistrate, he was given liberty to apply before the Sessions Court for bail within this period. Pursuant to this order respondent Daljit Singh filed an application under Section 439 Cr.P.C. for grant of regular bail before the Sub Divisional Judicial Magistrate Dasuya, who by his order dated 16.11.1995 rejected the bail application on the ground that the offence under Section 306 IPC was exclusively triable by the Court of learned Sessions Judge, Hoshiarpur. Thereafter Daljit Singh filed application under Section 439 Cr.P.C. for grant of regular bail before the Sub Divisional Judicial Magistrate, Dasuya, who by his order dated 16.11.1995 rejected the bail application on the ground that the offence under Section 306 IPC was exclusively triable by the Court of learned Sessions Judge, Hoshiarpur. Thereafter Daljit Singh filed application under Section 439 Cr.P.C. for grant of regular bail before the learned Sessions Judge, Hoshiarpur on 17.11.1995. Para 6 of the application reads as under :

"That the petitioner undertakes to join the investigation as and when required by the police. The petitioner also undertakes not to leave the country or not to tamper with the prosecution evidence. And he further undertakes not to abscond or jump over the bail. He also further undertakes to abide by all the conditions laid down under Section 439 of the Cr.P.C. or as may be imposed by this Hon''ble Court."

The above mentioned application dated 17.11.1995 was disposed of by the learned Sessions Judge, Hoshiarpur, by his order dated 17.11.1995. Relevant portion from this order is reproduced herein below :

"Present : Daljit Singh applicant with Shri Rajesh Joshi, Advocate.

Shri Y.P. Sharma, Public Prosecutor for the State.

xxx xxx xxx xxx

Concededly, the husband of the deceased, namely Jasbir Singh, has already been admitted to bail vide my order dated 17.10.1995. The case of the applicant is not distinguishable in any manner from him. Hence, the applicant, in case he surrenders to custody before the Illaqa Magistrate, would be admitted to bail on furnishing personal bond in the sum of Rs. 20,000/ with one surety in the like amount to his satisfaction. Copy of the order be given dasti."

Pursuant to this order respondent Daljit Singh was granted bail by the Illaqa Magistrate.

Crl.Misc. No. 20946 of 1995 has been filed by the complainant Pritam Singh under Section 439(2) Cr.P.C. for cancellation of bail granted to respondent Daljit Singh by the learned Sessions Judge, Hoshiarpur, vide order dated 17.11.1995. This application came up for hearing before the learned Single Judge, who has referred the matter to Hon''ble the Chief Justice on 11.7.1996 for constitution of a larger Bench as stated herein above.

Before dealing with the point referred to this Bench, it will be relevant to refer to Section 439 Cr.P.C. which reads as under :

Special Powers of High Court or Court of Session regarding bail (1) A High Court or Court of Sessions may direct

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in subsection (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that subsection;

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:

Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody."

A bare reading of Section 439 Cr.P.C. shows that a petitioner seeking regular bail under Section 439 Cr.P.C. must fulfil two conditions mentioned in Section 439 Cr.P.C. must fulfil two conditions mentioned in Section 439 Cr.P.C. itself that he should be accused of an offence and further he should be in custody. The question as to when a person can be deemed to be in custody within the meaning of Section 439 Cr.P.C. came up for consideration before the Hon''ble Supreme Court in Niranjan Singh and another v. Prabhakar Rajaram Kharote and others, AIR 1980 SC 785. After holding that the word "custody" is of elastic semantics and its core meaning is that the law is taken control of the person, the question was answered in the following terms :

"Custody, in the contest of Section 439, (we are not, be it noted, dealing with anticipatory bail under Section 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 terms of the law laid down by the Hon''ble Supreme Court, it is clear that a person seeking regular bail under Section 439 Cr.P.C. either should be in physical control or at least his physical presence in Court coupled with submission to the jurisdiction and orders of the Court should be there. The order dated 17.11.1995 passed by the learned Sessions Judge, Hoshiarpur, clearly shows that respondent Daljit Singh was physically present before the learned Sessions Judge, when the said order was passed. Further para6 of the application filed by Daljit Singh before the learned Sessions Judge (which has been reproduced herein earlier) clearly shows that the said respondent had submitted to the jurisdiction and orders of the Court of learned Sessions Judge. From these facts it is clear that the respondent Daljit Singh was in custody in the context of Section 439 Cr.P.C. when the orders dated 17.11.1995 were passed by the learned Sessions Judge, on his application under Section 439 Cr.P.C. The learned Sessions Judge while granting bail to the accused, however, should not have added the words "in case he surrenders to custody before the Illaqa Magistrate" but by the addition of these words, the orders of the learned Sessions Judge cannot be held to be illegal, particularly when the arrest of the accused had been stayed upto 20.11.1995 by the learned Single Judge.

We do not find any substance in the contention raised by the learned counsel for the petitioner that since the order dated 17.11.1995 does not contain the words that accused has submitted to the jurisdiction of the Court, the accused cannot be held to be in custody in the context of Section 439 Cr.P.C.

As stated herein above the physical presence of the accused has been shown in the order dated 17.11.1995 itself and para 6 of his application further shows that he had submitted to the jurisdiction and order of the Court, he has to be held in custody in the context of Section 439 Cr.P.C. when the said order dated 17.11.1995 was passed by the learned Sessions Judge. It may be relevant to point out here that the learned Single Judge by his order dated 10.11.1995 had allowed the accused Daljit Singh to approach the Courts below for grant of regular bail under Section 439 Cr.P.C. and had also ordered that he shall not be arrested upto 20.11.1995. Since the impugned order was passed on 17.11.1995, the question of the arrest of the accused till that date did not arise.

For the reasons recorded herein above, we answer the question in the following terms :

"The respondent Daljit Singh was in custody in the context of Section 439 Cr.P.C. when the order dated 17.11.1995 was passed by the learned Sessions Judge, Hoshiarpur on his application under Section 439 Cr.P.C. for grant of regular bail."