Sita Devi vs State of Jharkhand and Others

R.R. Prasad, J.—Heard learned Counsel appearing for the petitioner and learned Counsel appearing for the State.

Learned Counsel appearing for the petitioner submits that the petitioner was arrested on 19.10.2009 in connection with Barhi P.S. case No. 246 of 2009 by a Police Officer attached to Barhi Police Station. Soon thereafter, the petitioner made complaint that she was not feeling well and, therefore, she was referred to Primary Health Centre, Barhi, where first aid was given and then, she was referred to Sadar Hospital, Hazaribagh. After four days of getting treatment, she was referred to RIMS, Ranchi on 24.10.2004 and while the petitioner was undergoing treatment at RIMS, Ranchi, an application was filed stating therein that since the petitioner had not been produced before the court within 24 hours of her arrest, she may be enlarged on bail. However, that application was not entertained and was simply kept on the record presumably for the reason that she had not been remanded to judicial custody.

In the instant case, it does appear that the petitioner on being arrested, was never produced before the court, as, according to the petitioner itself, her condition was not good and she had to be removed to Hospital for treatment but there has been no denying of the fact that arrest has been effected on 19.10.2009 and if the arrest has been effected on 19.10.2009, the petitioner can or can not be said to be in custody in terms of Section 437(1) of the Code of Criminal Procedure when the application for bail was filed. This is the question which precisely fell for consideration.

What Is the meaning of custody u/s 439 of the Code of Criminal Procedure, came up for consideration before the apex Court in a case of Niranjan Singh and Another Vs. Prabhakar Rajaram Kharote and Others, wherein it was held hereunder:

When is a person in custody, within the meaning of Section 439 of the Code of Criminal Procedure. When he is in duress either because he is held by die 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 Courts jurisdiction and submitted to its orders by physical presence. No lexical destrity nor prcedential 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 equlvocatory quibbllngs 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 straightforwardness of the law. We need not dilate on tills 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 order of the Court.

Thus, it has been held in the said case that even a person under the control of the Court either having been remanded by the judicial order or having offered himself to the Court''s jurisdiction and submitted to its orders by physical presence before the Court or he is held by the Investigating agency or police or other allied authority will be treated to be in custody. No other meaning can be imported with the ''word'' custody appearing also u/s 437(1) of the Code of Criminal Procedure.

In that view of the matter, the application for bail when was filed on behalf of the petitioner before the Chief Judicial Magistrate, Hazaribagh was very well maintainable and it was quite wrong on the part of the Chief Judicial Magistrate to keep it pending as premature application on account of the fact that the petitioner has not been remanded to juridical custody.

In that situation, this application is disposed of with a direction to the petitioner to press the bail application pending from before or to file a fresh bail application in terms of Section 437 of the Code of Criminal Procedure, which shall be disposed of at the earliest.

Let a copy of this order be communicated to the court concerned through FAX at the cost of the petitioner.