SEROMAN SINGH Vs. STATE OF U P

JUDGEMENT

(1.) is application for bail has been moved by Sheronun 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. D.I.G. of Police and I.G. of Police but the illegal arrest of the applicant. An application was also made to the Additional Court of Munsif/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 fall 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 of 1983 under Sections 395/397 Indian Penal Code and Crime Nos. 38 to 41 of 1983 under Sections 399/402, Indian Penal Code and under Section 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 Honble 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. 6. 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 police-men and after taking evidence under Section 202 Criminal Procedure Code 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- 6. 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 under Section 439 Criminal Procedure Code unless he is in custody. 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

(2.) 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 dubioties 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.

(3.) 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 accllsed in court occupied with submission to the jurisdiction and orders of the court. He can be in custody not merely when the police arrest him produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to he 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 Criminal Procedure Code. 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