Criminal Application No.2318 of 2006

11th August, 2006

Petitioner Counsel: Mr. P. V. MANDLIK, Senior counsel h/f Mr. AMOL GANDHI
Respondent Counsel: Mr. BORADE

Cases Cited:
Anil Anantrao Lokhande Vs. State of Maharashtra, 1981 Cri.L.J. 125 [Para 7]
Thaniel Victor Vs. State, 1991 Cri.L.J. 2416 [Para 8]
State Vs. Maguni Charan Sahu, 1983(2) Cri. 323 [Para 9,8,12]
Niranjan Singh Vs. Prabhakar Rajaram Kharote, AIR 1980 SC 785 [Para 9]
State of Assam Vs. Mobarak Ali, 1982 Cr.L.J. 1816 [Para 9]
In Re : Digendra Sarkar, 1982 Cri.L.J. 2197 [Para 11]

JUDGMENT

JUDGMENT :- Rule. Rule made returnable forthwith. By consent, taken up for final hearing.

2. Heard Mr. Mandlik the learned senior counsel holding for Mr. Gandhi, advocate for applicants and Mr. Boarade, the learned A.P.P. for the State.

3. By this application, the applicants seek to be released on bail in crime No.14 of 2006 registered by Islapur police station for the offence punishable under Sections 143, 147, 148, 452, 323, 427, 506 r.w. 149 of I.P.C. and for the offence punishable under Section 3(1)(15) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, (hereinafter referred to as "the Atrocities Act" for the sake brevity).

4. The facts in brief are that on 25-3-2006 a report was lodged by the first informant Kamlabai Rahanna Ippalwad at Islapur police station alleging that the accused persons, who are applicants before this Court, had because of old enmity, entered into her house and abused and beaten the members of her family. On the basis of that report crime No.14 of 2006 was registered for the offence punishable under Sections 143, 147, 148, 323, 427, 452, 506 r.w. 149 of I.P.C. The accused persons were arrested and produced before the J.M.F.C. Kinwat on 26-3-2006. On the same day, the accused persons were released on bail. The investigating officer moved an application before the J.M.F.C. on 24-4-2006 alleging that the complainant had not made any reference of her caste nor she had submitted any caste certificate at the time of lodging the F.I.R. but later on she had submitted her caste certificate. He further alleged that after commission of the offence, a witness and his wife had left their home and were compelled to go somewhere and therefore, Section 3(1)(15) of the Atrocities Act should be included in the crime. Thus, the said Section under the Atrocities Act came to be added to the crime No.14 of 2006.

5. The applicants, who were already released on bail in the same crime pertaining to offence punishable under the provisions of Indian Penal Code, apprehended that they may be again arrested for the offence punishable under the Atrocities Act. Due to this apprehension, the applicants appeared and surrendered before the J.M.F.C. Kinwat, and requested to be released on bail. However, the learned J.M.F.C. refused to entertain the application and directed the applicants to move the Sessions Court. In view of this, applicants filed an application before the Sessions Court and sought to be released on bail for the offence under the Atrocities Act. The application was opposed on behalf of the police. In the order dated 24-7-2006, the learned Additional Sessions Judge noted that according to the applicants as they were released on bail, they should be deemed to be in custody of the court and therefore, application under Section 439 of Cr.P.C. was tenable. In the alternative, they had also prayed for anticipatory bail, in case they were not deemed to be in custody. On behalf of the prosecution, it was argued that the said application could not be considered under Section 439 of Cr.P.C. as the applicants were not in judicial custody and alternative prayer for anticipatory bail under Section 438 of Cr.P.C. could not be entertained in view of the provisions of Section 18 of the Atrocities Act. After hearing arguments, the learned Additional Sessions Judge observed that there is no provision in Cr.P.C. to presume that the accused are in judicial custody, particularly when they have been released on bail. He further observed that even though they were released on bail for the offence except those under the Atrocities Act, they could be taken in custody by the police or the learned Magistrate under the provisions of the Atrocities Act in view of the addition of the offence under the Atrocities Act. He came to conclusion that once the applicants were released on bail, they could not be deemed to be in custody of the court though they are under domain of the court. In the result, the application for bail under Section 439 of Cr.P.C. was rejected and the prayer under Section 438 of Cr.P.C. was also turned down on the ground that it is not tenable in view of Section 18 of the Atrocities Act.

6. In view of the above circumstances, the applicants have filed the present application for bail under Section 439 r.w. 482 of Cr.P.C. Mr. Mandlik, the learned senior counsel for applicants vehemently contended that firstly, when the applicants appeared before the J.M.F.C. and thereby voluntarily surrendered, they could have been granted bail. Secondly, he contended that, even though the applicants were enlarged on bail, still they were notionally in the custody of the court. As they were already in custody of the court as such, they could be granted bail under Section 439 of Cr.P.C. by the Magistrate as well as by the Additional Sessions Judge.

7. Whether after grant of bail, the accused are still in custody or not, was a question which was extensively dealt with by the Division Bench of this Court in Anil Anantrao Lokhande Vs. The State of Maharashtra (1981 Cri.L.J. 125), though in a different context. In that case, the question was whether after release of the accused further investigation could be taken up by the police and whether the accused could be referred for medical examination for that purpose. After dealing with the relevant provisions, in Sections 53, 54 and 173(8) of Cr.P.C., the Division Bench of this Court in para 28 observed as follows:-

"28. Similarly, it will not be correct to say that only because the accused person is released on bail he ceases to be in the custody and therefore, powers under Section 53 of the Code of Criminal Procedure cannot be exercised. Only because the bail is granted, the reality is not changed and from that fact alone it cannot be said that he is not a "person arrested for an offence." A person released on bail is still considered to be detained in the constructive custody of the court through his surety. He has to appear before the court whenever required or directed. Therefore to that extent his liberty is subject to restraint. He is notionally in the custody of the court, and hence continues to be a person arrested. Even in spite of the fact that the accused is released on bail he is still a person arrested on a charge of committing an offence and therefore his medical examination can be carried out under Section 53 of the Code."

8. In the similar case before Madras High Court in Thaniel Victor Vs. State (1991 Cri.L.J. 2416), the learned Single Judge of Madras High Court came to a conclusion that release on bail does not change the reality and from the fact alone it cannot be said that he is not a person arrested for an offence. It was held that even though the person is released on bail, he is considered to be detained in constructive custody of the court through his surety. In view of the above referred authorities it must be held that though the accused persons were released on bail still they were in constructive custody of the court when an offence under the Atrocities Act was added to the crime No.14 of 2006 by the police. In the same crime No.14 of 2006 due to addition of Sections under the Atrocities Act, when they appeared before the J.M.F.C. and then before the Sessions Court, with request to be released on bail, they should be deemed to be in constructive custody of the court and as such their application for bail under Section 439 of Cr.P.C. could be entertained.

9. Besides that the applicants were in notional or constructive custody of the court, they had actually appeared and surrendered themselves before the court and sought to be released on bail for the offence under the Atrocities Act. It is contended by the learned counsel for the applicant that when they voluntarily surrenderred, before the court, they were supposed to be in custody of the court and they could be released on bail under Section 439 of Cr.P.C. In support of this contention the learned counsel placed reliance upon State Vs. Maguni Charan Sahu and others, (1983(2) Crimes 323), an authority of the Division Bench of Orissa High Court. The Division Bench referred to following observations of the Supreme Court in Niranjan Singh and another Vs. Prabhakar Rajaram Kharote and others (AIR 1980 SC 785) :-

"When is a person in custody, within the meaning of Section 439 Criminal Procedure Code? 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 presidential 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 quibbling 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 dubieties 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.

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."

10. The Division Bench of Gauhati State of Assam Vs. Mobarak Ali and others (1982 Cr.L.J. 1816) observed in para 3 as follows :-

". . . . . The meaning of the term "Custody" is "physical control" or at least physical presence of the accused in Court coupled with submission to the jurisdiction and order of the Court, as explained by the Supreme Court in Niranjan Singh Vs. Prabhakar, AIR 1980 SC 785 : (1980 Cri.L.J. 426). Their Lordships have clearly stated: "he can be stated to be in judicial custody when he surrenders before the Court and submits to its direction". Therefore, the term "appears" in Section 487 means and includes voluntary appearance before the Court without intervention of any agency and the act of surrender before the Court coupled with submission to its directions. These are implicit in Section 437 of "the Code"."

11. A learned Single Judge of the Calcutta High Court in the case of In Re : Digendra Sarkar and others, (1982 Cri.L.J. 2197) observed as follows in para 10:-

"10. In my view, having regard to the express provisions of section 437(1) of the Code and the aforesaid decision of the Supreme Court explaining the word 'custody' it must be held that when a person accused of or suspected of the commission of a non bailable offence appears before the learned Magistrate and surrenders or submits himself to the jurisdiction and orders of the court, he is in custody, and the learned Magistrate in the present case is required to accept the surrender of the petitioners and deal with their application for bail. Such a person is under duress and has placed himself under the power of restraint exercisable by the Court by his physical presence before the court and expressing his intention to submit himself to the orders of the Court."

12. Relying on these authorities and some other cases, the Division Bench of Orissa High Court in State Vs. Maguni Charan Sahu and others (supra) came to conclusion that when the accused voluntarily surrenders before the Court, he is in custody of the Court and he may be released on bail under Section 439 of Cr.P.C. Taking into consideration the authorities of the Supreme Court and other authorities on the subject, the law is now well settled that when the accused voluntarily surrenders or appears before the Court and seeks bail, he is in custody of the Court.

13. Taking into consideration the legal position stated above, it must be held that as the applicants in the crime No.14 of 2006 were previously arrested and released on bail by the J.M.F.C., they continued to be in constructive or notional custody of the court and in view of this, when second time they made an application for being released on bail for the offence under the Atrocities Act, the application under Section 439 of Cr.P.C. could be considered and appropriate order of bail could be passed. Besides this, even if the notional custody is not taken into consideration, as they had voluntarily appeared before the court and surrendered to the jurisdiction and order of the Court, they were to be presumed to be in custody of the court. As soon as they appeared or surrendered before the court their application for bail under Section 439 of Cr.P.C. could be entertained and they could be released on bail by the Sessions Court. In view of this, it must be held that the learned Additional Sessions Judge committed an error in coming to conclusion that he could not entertain the application. After rejection of their application by the Sessions Court, they have moved the present application before this Court. As they are already on bail granted by the Magistrate in the same crime, they should be deemed to be in notional or constructive custody of the court and therefore, their application under Section 439 r.w. Section 482 of Cr.P.C. is tenable before this Court.

14. In view of the facts of the case, I am inclined to grant bail to the applicants. The applicants are hereby granted bail in crime No.14 of 2006 registered by Islapur police station for the offence punishable under Section 3(1)(15) of the Atrocities Act in the sum of Rs.5,000/- each with surety in like amount with condition that they shall not tamper with the prosecution evidence and shall not misuse the bail.

15. Rule made absolute in the above terms.

Application allowed.