Seroman Singh vs State of U.P.

B.C. Jauhari, J.—This application for bail has been moved by Sheroman Singh who has filed an affidavit in support of his application alleging that he was arrested on 5-6-1983 by the police of police station Besinda, district Banda and was taken to an unknown destination. Thereafter, successive complaints and applications were made to the Chief Minister, Secretary, Home Department, DIG of Police and IG of Police about the illegal arrest of the applicant. An application was also made to the Additional Court of Munsiff/Magistrate, Banda complaining of the arrest. Copies of these applications have been annexed. The police demanded illegal gratification for release of the applicant and put their demand very high which could not be fulfilled and thereafter the plan was to do away with the accused in a fake encounter. The applicant ran away from the police custody and a report about the matter was published in the Blitz issue dated 30-7-83. The police has framed two cases namely Crime No. 35/1983 under Sections 395/397 IPC and Crime Nos. 38 to 41 of 1983 under Sections 399/402 IPC and u/s 25 Arms Act from police station Besinda. It is alleged in the affidavit that there is danger to the life of the applicant at Banda and that the applicant would surrender before the Hon''ble Court at the time of the hearing of the bail-application. This application for bail accordingly has been moved without moving the Court of the Magistrate or Sessions Judge at Banda and without surrendering to the judicial custody at Banda.

Notice of the application was given to the State and the learned Government Advocate has appeared and opposed this application. The contention of the learned Government Advocate is that the application for bail is not competent as the applicant has not complied with Rule 18 of Chapter XVIII of the Allahabad High Court Rules, 1952. It was urged that under Rule 18 no application for bail can be entertained unless accompanied by a copy of the order passed by the Sessions Judge on the bail-application and unless the accused has surrendered. It was further urged that there is no provision for surrender before the High Court and it would appear inexpedient and impracticable to allow surrender in the High Court. There is neither machinery for accepting surrender nor do the provisions in the Code of Criminal Procedure make a provision for this contingency. The learned Counsel for the applicant contended that u/s 439 Code of Criminal Procedure which is the provision containing the power of the High Court to gram bail, the accused should be in custody and since the applicant has appeared before this Court and has surrendered, the accused-applicant would be deemed to be in custody within the meaning of Section 439 Code of Criminal Procedure and the High Court can grant bail. It was further urged that the Rules of the Court in so far as they are repugnant to the provisions of Section 439 Code of Criminal Procedure and the law declared by the Supreme Court should be struck down as void. It was also submitted that this is a most unusual and rare case where the applicant instead of following the normal procedure has come before this Court in the extra-ordinary circumstances of the case where the life of the applicant is in danger. Lastly it was contended that this Court has very recently in Criminal Misc. Application No. 1297 of 1982 accepted surrender and has released an accused on bail in a case of district Agra acting under the provisions of 482 and 439 Code of Criminal Procedure. The learned Counsel has also submitted that there are atleast three more cases to his knowledge where this extra-ordinary power of the High Court was invoked and exercised.

I have considered the argument of the learned Counsel and feel myself unable to accept the contention of the applicant. Section 439 of the Code of Criminal Procedure reads as below;

(1) A High Court or Court of Session 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 Sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that Sub-section;

(b)....

It would be seen from this provision that before a High Court exercises its power in granting bail, the person accused of the offence must be in custody. The contention of the learned Counsel for the applicant is that since he has surrendered before this Court, he shall be deemed to be in custody. The question, therefore, to be considered is whether he is in custody by merely surrendering before this Court in the sense that he is moving this application and is present in the Court. The provisions regarding grant of bail, remand etc. by the Magistrate are contained in Section 167 Code of Criminal Procedure. Section 167 Code of Criminal Procedure as enacted originally did not contain any provision for surrender before the Magistrate and in the case of Kedar Vs. State, and the earlier case decided by a Division Bench in this Court in Habeas Corpus Writ Petition No. 10652 of 1975 on 15-12-1975 the surrender was not accepted as legal. Subsequently, by a local amendment the provision of surrender was incorporated which did not exist at all in the Code of Criminal Procedure and Section 167-A was enacted which made applicable the provision of remand and bail to cases of arrest by order of Magistrate i.e. surrender before him. This surrender under the terms of the Section 167-A can only take place in the court of Judicial Magistrate who if he has jurisdiction to try the case, can authorise the detention of the accused from time to time but if he has no jurisdiction, then also he can remand for a term not exceeding 15 days. Apart from Section 167 which circumscribes the power of'' the Magistrate to accept surrender there is no other provision in the Code of Criminal Procedure for surrender.

The learned Counsel for the applicant has cited the case of Niranjan Singh and Another Vs. Prabhakar Rajaram Kharote and Others, . It was urged on the basis of this ruling that a person can be in custody when he surrenders before a court and submits to its direction. It was, therefore, "urged that by moving this application and offering to surrender before this Court, amounts to custody within the meaning of Section 439 Code of Criminal Procedure and the High Court has, therefore, jurisdiction to consider the question of bail unltramelled by the High Court Rules. It was said that the High Court Rules in so far as they are inconsistent with the law laid down in the Supreme Court ruling should be ignored and struck down.

I have read the ruling very carefully. That case arose from Bombay and the facts of that case were that a complaint was filed against certain policemen and after taking evidence u/s 202 Code of Criminal Procedure non-bailable warrants was issued for the production of the accused. The execution of these warrants was meanwhile stayed by the Magistrate at the instance of the accused. The accused then moved the Sessions Court for bail and the Sessions Judge granted bail subject to certain directions and conditions. We are unable to gather from the report of a ruling as to what were those directions and conditions. Thereafter, it appears that the complainant moved High Court for reversal of the order and the High Court declined to interfere and again added certain conditions to ensure that the bail was not refused and the course of justice was not thwarted. The argument that the accused were not in custody and hence the bail could not be granted, was repelled in the following terms of paras 6 to 9 of the ruling which read as under:

Here the Respondents were accused of offences but were not in custody, argues the Petitioner. So no bail, since this basic condition of being in jail is not fulfilled. This submission has been rightly rejected by the Courts below. We agree that, in our view, an outlaw cannot ask for the benefit of law and he who flees justice cannot claim justice. But here the position is different. The accused were not absconding but had appeared and surrendered before the Sessions Judge. Judicial jurisdiction arises only when persons are already in custody and seek the process of the court to be enlarged. We agree that no person accused of an offence can move the court for bail u/s 439 Code of Criminal Procedure unless he is in custody.

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.

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. In the present case, the police officers applied for bail before a Magistrate who refused bail and still the accused, without surrendering before the Magistrate, obtained an order for stay to move the Sessions Court. This direction of the Magistrate was wholly irregular and may be, enabled the accused persons to circumvent the principles of Section 439 Code of Criminal Procedure. We might have taken a serious view of such a course, indifferent to mandatory provisions, by the subordinate magistracy but for the fact that in the present case the accused made up for it by surrender before the Sessions Court. Thus the Sessions Court acquired jurisdiction to consider the bail application. It could have refused bail and remanded the accused to custody, but, in the circumstances, and for the reasons mentioned by it, exercised its jurisdiction in favour of grant of bail. The High Court added to the conditions subject to which bail was to be granted and mentioned that the accused had submitted to the custody of the court. We, therefore, do not proceed to upset the order on this ground. Had the circumstances been different we would have demolished the order for bail. We may frankly state that had we been left to ourselves we might not have granted bail but, sitting under Article 136 do not feel that we should interfere with a discretion exercised by the two courts below.

It would thus appear from the ruling that in the particular context of that case the surrender before the Sessions Judge was held as tantamount to custody within the meaning of Section 439 Code of Criminal Procedure. It is true that in the scheme of the Code of Criminal Procedure there is no provision for surrender before a Session Judge. In the ruling that has been quoted above, it has been observed that the surrender before the court of Sessions gave jurisdiction to the Sessions Judge to consider the bail application and it has also been remarked that the Sessions Judge could have refused bail and remanded the accused to custody. Since there is no express power given to the Sessions Judge to remand the accused to custody, the observations made in the rulings of the Supreme Court would mean a grant of remand by the appropriate authority namely the Magistrate having jurisdiction under the direction of the Sessions Court. If the present application had also been moved before the Sessions Court, then on the basis of this ruling the learned Sessions Judge having jurisdiction over the sessions division where this occurrence took place could have accepted surrender and dealt with the bail application. In the event of allowing the bail-application the accused would have been released and in the event of rejecting bail, the Sessions Judge would have given direction to the Magistrate to pass a proper order of remand. The analogy of the Sessions Court cannot be extended to this High Court. The High Court, apart from the fact that there is no provision for surrender in the scheme of the Code of Criminal Procedure before the High Court, the High Court after accepting the surrender cannot remand the accused to costody. The present case relates to Banda and there is neither any material in the High Court to issue any direction to the appropriate authority who can grant a legal remand under the provisions of the Code of Criminal Procedure. If surrender before this Court was held to be proper and legal then this Court would be flooded with the applications of this type from all over the State and it would be very difficult to deal and cope up with it. There is, therefore, neither the machinery to deal with it nor feasibility nor is this sanctioned by the provisions of the Code of Criminal Procedure.

Coming now to the question that the High Court has exercised this power of granting bail in extra-ordinary cases, as far as the case of Criminal Misc. Application No. 1297 of 1982 is concerned, there is no discussion on the basic question whether this High Court under the terms of the Code of Criminal Procedure can accept surrender. In the instant case also if it is assumed for a moment that this Court does not grant bail, then how is this Court going to effect the socalled surrender before this Court by making an application and presenting himself before this Court. There are neither any papers nor is this Court authorised to issue an order of detention or remand.

This brings me to the question of High Court Rules. The High Court Rules have been framed in the exercise of powers conferred under Article 225 of the Constitution of India and are rules of procedure. As far as Rule 10 Chapter XVIII is concerned, there are two preconditions before an application for bail can be considered, the first being a copy of the order of the Sessions Judge on the bail application and the second is that he has surrendered. This means that the High Court will not exercise its powers unless the Sessions Judge has been moved. In the instant case instead of moving the Sessions Judge the applicant has come straight to this Court. The second condition about surrender has also not been fulfilled. As far as the law declared in the Supreme Court ruling is concerned, there is no repugnancy between Rule 18 and the law declared by the Supreme Court. In that ruling the question of surrender was before the Sessions Judge and it was held in the particular circumstance of that case that surrender amounted to custody within the meaning of Section 439 Code of Criminal Procedure. In the instant case also according to law laid down in the Supreme Court ruling, the applicant can very well surrender before the Sessions Judge, obtain orders of rejection of his bail and then move this Court after complying with the provisions of Rule 18 Chapter XVIII.

Giving the matter my anxious consideration I feel that there is no provision for surrender before the High Court in the Code of Criminal Procedure. This Court had previously held even surrender before a Magistrate to be illegal until the law was amended in 1977 by inserting Section 167-A by the U.P. Act XVI of 1977. Unless the accused surrenders and is in custody within the meaning of Section 439 Code of Criminal Procedure and unless he follows Rule 18 which means that he moved the Sessions Court and obtained an order of rejection, his bail-application cannot be considered. The application, therefore, deserves to be rejected.

In the result the application is rejected. A copy of this order may be given to the learned Counsel for the applicant within three days on payment of usual charges.