Ranjit Kumar Singh alias Laddo Singh vs State of U.P.

Virendra Saran, J.—Heard Sri. Raza Zaheer on behalf of the applicant and Sri. Bireshwar Nath and Sri. Janardan Singh for the State.

Ranjeet Kumar Singh alias Laddo Singh is involved in Crime No. 496 of 1994, P.S. Aliganj, Lucknow under Sections 302/120B, I.P.C. The deceased Sri. Susheel Kumar Misra was posted as Chief Engineer, Mandi Parishad, Uttar Pradesh, Lucknow. On 7.8.1994 at about 7 a.m. he along with his 7 years'' old daughter Nishtha left his house for the usual morning walk. Their relation Sri. Satya Dev Sharma was reading newspaper outside in the Verandah and close to him deceased''s brother Ashok Kumar Misra was enjoying tea. Sri. Susheel Kumar Misra and Nishtha could hardly proceed a few paces when two scooter borne miscreants appeared on the scene. One of them, who was sitting on the pillion of the scooter fired shots at Sri. Susheel Kumar Misra. On the arrival of the witnesses, the miscreant escaped on the scooter. Sri. Misra was seriously injured and ultimately succumbed to his injuries. The F.I.R. of the case was lodged by Vinod Kumar Misra, younger brother of the deceased. It was mentioned in the F.I.R. that the deceased had earned the wrath of certain persons and certain contractors in the performance of his official duties. The assasins being not known to the informant were not named in the F.I.R The complicity of the applicant emerged during investigation.

At present the applicant is confined in Faizabad Jail in connection with another murder case, that is Crime No. 326 of 1989 of P.S. Cantt. Faizabad under Sections 147/148/149/302/323/308. I.P.C. The case at Faizabad is still pending committal to the Court of Sessions. Learned Counsel for the applicant has informed that the applicant had been earlier granted bail in the murder case at Faizabad, but after the present incident he himself got his bail bonds cancelled and surrendered and since then he is confined in Faizabad Jail and on 30.8.1994 the Chief Judicial Magistrate, Lucknow passed order u/s 267 of the Code of Criminal Procedure (for short, the Code) for the production of the applicant before him at Lucknow for the purpose of remanding him to custody in the present case. Production warrant has also been sent to the officer-in-charge of the Faizabad Jail, but the order of the learned Chief Judicial Magistrate, Lucknow has not been carried out so far by the offlcer-in-charge of Faizabad Jail with the result that the applicant could not be brought to Lucknow and remanded to custody in connection with the present murder case at Lucknow. The applicant moved a bail application before the learned Chief Judicial Magistrate, Lucknow on 5.9.1994 but his application has been rejected on 7.9.1994 by the learned Chief Judicial Magistrate, Lucknow on the ground that the applicant has not been remanded to custody in the present case and, therefore, he had no jurisdiction to entertain the ball application.

Sri. Raza Zaheer, learned Counsel for the applicant has submitted that for considering the bail application of an accused, it is not necessary that he should be remanded to custody in respect of the offence in which he seeks bail and even if he is In custody in any other connection, may be in a distant place, as in the present case, he is entitled for the consideration of his bail application on merits. Sri. Raza Zaheer has relied on the case of Choudhary Jitendra Nath v. State of U.P. 1991 ACC 498 In which N.L. Ganguli, J. relying on the case of Niranjan Singh and Anr. v. Prabhakar Rajaram Kharote and Ors. 1980 SCC 508 had directed the Sessions Judge of Mirzapur to hear and dispose of the bail application of an accused who was confined in Nainl Central Jail at Allahabad in connection with another case u/s 60 of the Excise Act. The observations of the Supreme Court taken note by Ganguli. J. read thus:

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 coercive power is in custody for the purpose of Section 439. 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 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 the case of Niranjan Singh (Supra) the accused had been granted bail by the learned Sessions Judge after the accused had appeared before the Court of Sessions and it was in that context the Supreme Court held that judicial jurisdiction of granting bail arises only when the accused is already in custody and no person can move the Court for bail u/s 439 of the Code unless he is in custody. The Supreme Court further held that if the accused was in physical control of the Court or at least physically present in Court coupled with his submission to the Jurisdiction and orders of the Court, he was entitled for consideration of his ball. The facts of the case of Niranjan Singh (Supra) were quite different. The learned Counsel for the applicant has contended that the law laid down in Niranjan Singh''s Case (Supra) has been extended by Ganguli, J. when he gave directions to the Sessions Judge, Mirzapur to consider the bail application of an accused who was confined in Allahabad jail in a different case.

The law on the point has been subsequently elucidated and clarified by the Supreme Court in the case of C.B.I. v. Anupam J. Kulkarni 1992 SCC 554 . The Supreme Court recognised the principle that even if the accused is in custody in one, he can be allowed to be remanded afresh in respect of a distinct case. The Supreme Court was considering the continuation in custody in the context of Section 167(1) and (2) of the Code and it held that remands are to be granted in specific cases in which the accused is involved. The Supreme Court approved the view of Punjab High Court in the case of S. Harsimran Singh Vs. State of Punjab, where it had been observed:

We see no inflexible bar against a person in custody with regard to the investigation of a particular offence being either re-arrested for the purpose of investigation of an altogether different offence Therefore, a re-arrest or second arrest in a different case is not necessarily beyond the ken of law.

The question that arose before the Supreme Court in the case of C.B.I. (Supra) was slightly on different question, but it has its bearing on the construction of the word "custody", occurring in Section 439 of the Code. In view of the elucidation of law by the Supreme Court, it is no more possible to stretch the meaning of word "custody" beyond the reasonable limits of elasticity and it is not possible to lay down that even If the accused has not appeared before Court nor has been remanded to custody. In the case in hand, his ball may be considered. No doubt, even if the accused is physically present in Court, the Court will have Jurisdiction to consider the bail application on merits and it is not necessary to remand him to jail or other custody. The provisions of Section 437 of the Code, which empower a Magistrate to grant ball in non-bailable offences also throw light on the real meaning of the word "custody" used in Section 439. Section 437(1) states:

437 (1).-When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, butf Section 167(1) and (2) of

(Emphasis is supplied by me)

Thus, the accused who have either been arrested or detained without warrant by a police officer or who appear or are brought before the Court can apply for ball to the Magistrate. The word "offence" occurring in Section 437(1) of the Code no doubt means offence in which he seeks ball. The word "custody" occurring in Section 439 of the Code has to be construed in harmony with Section 437 of the Code. At the risk of repetition, I would like to emphasise that even if the accused appears before the Court and submits to its jurisdiction, he can be said to be in custody for the purpose of Section 439 of the Code. Even if, an accused once appears or surrenders and is released on Interim bail or short bail in an offence, the Court will have jurisdiction to consider his bail application in respect of the same offence because an accuse continues to be in custody of the Court through sureties. But Section 437 as also Section 439 of the Code do not envisage granting of bail to a person who has not submitted to the jurisdiction of the Court. In modern times, crimes are committed in a most pre-planned manner and the criminals outwit the law enforcing agencies. If argument of Sri. Raza Zaheer is accepted, the accused will always remain illusive and will make a mockery of the process of law.

In the case in hand, the accused has neither been arrested nor detained without warrant by the Officer-in-Charge of the police station nor has he appeared or brought before the Court. In these circumstances the Jurisdiction to consider his bail application on merit did not arise u/s 437 of the Code and the impugned order of the learned Chief Judicial Magistrate, Lucknow, is justified.

This application is accordingly rejected.