SAYAREDDI SAYANA BIJUR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) 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.) 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 Section439 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 Section439 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 Section18 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 Section439 of Cr. P. C. was rejected and the prayer under Section438 of Cr. P. C. was also turned down on the ground that it is not tenable in view of Section18 of the Atrocities Act.