Subhash vs State of Haryana

H.S. Brar, J.

This is an application under Section 439 of the Code of Criminal Procedure, for bail filed by Subhash and Sunil petitioners in a case registered against them vide First Information Report No. 280, dated July 29, 1993, Police Station Gohana, under Section 363A of the Indian Penal Code.

Earlier an application for bail under Section 439 of the Code of Criminal Procedure in the same case was filed by them before the learned Sessions Judge, Sonepat, who dismissed the same being not maintainable, as, according to him, the accused petitioners Subhash and Sunil had been taken into custody in the case in hand.

Briefly stated, the facts are that both the accusedpetitioners Subhash and Sunil are stated to be lodged in District Jail, Meerut in various cases under Sections 307, Indian Penal Code and 25 of the Arms Act, pertaining to Police Station Transport Nagar, Meerut and in a case under Section 394 of the Indian Penal Code of Police Station Partap Pur, District Meerut. Since the accusedpetitioners were also involved in the abovementioned case under Section 363A of the Indian Penal Code, of Police Station, Gohana, the Police of C.I.A. Staff moved the court of SubDivisional Judicial Magistrate, Gohana, for issuance of production warrants in respect of the accusedpetitioners to the Superintendent of District Jail, Meerut. However, each time, the various production warrants issued by the Court of SubDivisional Judicial Magistrate, Gohana, were returned unexpected with the reports of the Superintendent, District Jail, Meerut under Section 269 (b)(c), Code of Criminal Procedure, and under Section 6(b)(c) of the Prisoners Attendance in Court Act, 1955, to the effect that the accusedpetitioners could not be sent to the Court of SubDivisional Judicial Magistrate, Gohana, as they were involved in various cases at Meerut and that production warrant be sent again. However, uptil now accusedpetitioners Subhash and Sunil have not been produced in the Court of SubDivisional Judicial Magistrate, Gohana, in the abovementioned case, in pursuance of the various production warrants. Thus, the accusedpetitioners have not been formally arrested by the Police in the abovementioned case under Section 363A of the Indian Penal Code, of Police Station, Gohana.

The learned counsel for the petitioners states that the accused petitioners were already in Judicial custody and were lodged in District Jail, Meerut in the earlier referred to cases and, as such, they shall be deemed to be in custody in this case as well, especialy when their production warrants had already been issued by the learned SubDivisional Judicial Magistrate, Gohana, and thus, the Sessions Judge had the jurisdiction and was competent to release the petitioners on bail in this case under Section 363A of the Indian Penal Code. Thus, the learned Sessions Judge fell in error in dismissing the bail application of the accusedpetitioners as not maintainable.

Thus, this application before this Court under Section 439 of the Code of Criminal Procedure.

In order to substantiate his contention, the learned counsel for the petitioners has cited a judgment of the Allahabad High Court in Criminal Miscellaneous Application No. 3901 of 1991 (Chaudary Jitendra Nath v. State of U.P., decided on March 25, 1991) and Niranjan Singh and another v. Prabhakar Rajaram Kharote and others, AIR 1980 SC 785.

On the other hand, the learned Deputy AdvocateGeneral, Haryana, has argued that the bail application under Section 439 of the Code of Criminal Procedure, is not maintainable, as the accusedpetitioners have not been taken into custody so far in case under Section 363A of the Indian Penal Code, registered against them vide First Information Report No. 280, dated July 29, 1993, Police Station, Gohana. According to the learned State counsel, until and unless the petitioners are taken into custody in this particular case, no application for bail would be maintainable either before the Sessions Court or before this Court under Section 439 of the Code of Criminal Procedure. He also relied upon Niranjan Singh''s case (supra), cited by the counsel for the petitioners, in addition to the authority of the Allahabad High Court in Pramod Kumar v. State of U.P., 1991 All. L.J. 356.

The sole point for consideration in this case is, as to whether the petitioners against whom the case has been registered under Section 363A, Indian Penal Code, vide First Information Report No. 280 dated July 29, 1993, in Police Station, Gohana, and have not been arrested in this case so far but they are under arrest in other cases and are confined to judicial custody in District Jail, Meerut in those cases, are entitled to make an application under Section 439, Code of Criminal Procedure before the Sessions Judge, Sonepat or before this Court for their bail in the case in hand in which they have still to be arrested. The authority Chaudhary Jitendra Nath''s case (supra) cited by the learned counsel for the petitioners supports the contention of the petitioners'' counsel that the petition under Section 439, Code of Criminal Procedure is maintainable even in that case in which the petitioners have not been arrested. The facts in that case were that the applicants were arrested by the Police at Allahabad and sent to jail custody. When they were still confined in jail custody at Allahabad, another case was registered against them under Sections 302/307, Indian Penal Code of Police Station Kotwali Katra Mirzapur. The learned Additional Sessions Judge refused to consider the bail application under Section 439, Code of Criminal Procedure of the applicants on the ground that the accusedapplicants were not in custody on the remand order passed by the Court at Mirzapur. He considered this fact as a ground for rejection of their bail application. The learned Single Judge of the Allahabad High Court set aside the order of the learned Additional Sessions Judge, Mirzapur and directed him to hear the applications for bail afresh treating the applicants to be in jail custody in some other cases at Allahabad and not at Mirzapur, though they were not arrested in this case. In order to reach this conclusion, the learned Single Judge relied on the following observations of the Supreme Court in Niranjan Singh''s case (supra):

"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 hideandseek 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 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."

The authority of the Supreme Court which has been relied upon by the learned Single Judge of the Allahabad High Court had only considered as to when a person is 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. The Supreme Court in that context observed as under :

"...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 hideandseek 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."

Custody, in the context of Section 439, Code of Criminal Procedure, was construed by the Supreme Court as physical control or at least physical presence of the accused in Court coupled with submission to the jurisdiction and orders of the Court.

It was further clarified by the Supreme Court that an accused was 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 of its directions.

There cannot be two opinion about the decision of the Supreme Court in holding about the meaning of custody under Section 439 of the Code of Criminal Procedure.

Here, in this case the factual position is entirely different. The accusedpetitioners were certainly in custody in other cases registered against them under Sections 307/34, Indian Penal Code, 25 of the Arms Act, pertaining to Police Station Transport Nagar, Meerut and under Section 394, Indian Penal Code of Police Station Partap Pur, District Meerut, but as explained even the Supreme Court in Niranjan Singh''s case (supra), the accusedpetitioners (in this case) were never under arrest in a case registered against them under Section 363A, Indian Penal Code, in Police Station, Gohana, District Sonepat. In this case, the accusedpetitioners were not taken even into informal custody by the police. Neither they were detained for interrogation nor for other purpose by the police under Section 363A, Indian Penal Code, obviously because they were detained in judicial custody and were in judicial custody in the other cases mentioned above in District Jail, Meerut. This situation never arose in a case referred to by the learned Advocate before the Supreme Court in Niranjan Singh''s case (supra). The Supreme Court has rather categorically held that custody in the context of Section 439, Code of Criminal Procedure, is physical control or at least physical presence of the accused in Court coupled with submission to the jurisdiction and orders of the Court. All these particulars are lacking in this case. The accused in this case were neither in the physical control of the police nor did they put in physical presence in Court in obedience to the orders of the Court at Sonepat. In this situation, the accusedpetitioners cannot invoke the jurisdiction of this Court or of the Sessions Court, under Section 439 of the Code of Criminal Procedure, for getting themselves released from custody when they are not in the physical custody of the police or of the Court at all. I am rather fortified by the following observations of the Supreme Court made in Niranjan Singh''s case (supra):

"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 under Section 439, Code of Criminal Procedure, unless he is in custody."

In this view of the matter, I respecfully disagree with the view expressed by the learned Single Judge of the Allahabad High Court in Chaudhary Jitendra Nath''s case (supra). This view of mine finds support from the judgment of the Allahabad High Court in Pramod Kumar''s case (supra). The relevant portion needs reference which is as under :

The learned Additional Sessions Judge in his order rejecting the application has rightly remarked that once a requisition for transfer of the applicant from Kanpur Jail to Agra was issued by the Court concerned, it was meaningless for the police of Agra to seek remand under Section 167 of the Code from the Chief Metropolitan Magistrate, Kanpur Nagar. Therefore, after careful consideration of the aforesaid legal position, there remains no doubt that the applicant was not in the custody of Crime No. 166 of 1989 under Sections 147/148/149/307/302, I.P.C. of Police Station, Etmadpur District Agra. As the applicant was not in the custody in that crime case, the Courts at Agra had no jurisdiction to release him on bail. The bail application was rightly held to be premature by the Additional Sessions Judge. The present bail application relating to aforesaid crime case of Agra is also held to be premature and is accordingly rejected."

Thus, in such a case, it is the custody of the accusedpetitioners in which bail is sought which is relevant and not the custody in any other cases. Obviously in the case in hand, the accusedpetitioners have neither been arrested nor in the control of the police or of the Court.

In these circumstances, this petition is dismissed without having any force. However, the petitioners are at liberty to apply before the Sessions Court for anticipatory bail under Section 438 of the Code of Criminal Procedure and the relevant court will consider after going into the facts of the case whether to grant them anticipatory bail in the given circumstances, or not.