JYOTI BHIMRAO MORE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY consent of the learned counsel for the applicant and the respondent, the matter is taken up for final hearing and disposal.

(2.) A complaint has been registered as C.R. No.1-59/09 under section 306, 498-A, 323, 504 read with 34 of IPC. The complaint has been filed by the mother of the deceased. The deceased Prerana was married to one Nitin Jadhav and it is the case of the prosecution that the husband of the deceased and her father in law and mother in law have subjected the deceased to cruelty on account of which she committed suicide. According to the learned counsel for the applicant, the applicant was married prior to the marriage of Nitin Jadhav with deceased Prerane and the applicant is residing along with her husband at Alibaug. The applicant is also stated to be pregnant. Apprehending arrest the applicant had moved an application under section 438 of Cr.P.C. before the Sessions Judge, The Sessions judge on considering the merit of the matter had granted anticipatory bail to the present applicant by confirming the earlier order granting interim anticipatory bail. However while granting anticipatory bail it was directed that the order shall operate for a period of 60 days during which period the applicant may apply for regular bail. In tune with the directions, the applicant filed an application for regular bail under sec. 439 Cr.P.C. before the Additional Sessions Judge, Kalyan by submitting her to the jurisdiction of the said court., By passing a cryptic order dated 15th July 2009 the Sessions Judge has rejected the application solely on the ground that unless the accused is in custody there is no question of releasing her on bail. The learned counsel for the applicant places reliance on a judgment of this court reported in 2008 (5) LJSOFT 62 = 2008 (3) AIR Bombay Reporter 358, wherein this court by placing reliance on a Supreme Court judgment has interpreted the phraseology "person in custody" used in section 439 of Cr.P.C. The phrase "in custody" has been interpreted to cover the situation wherein a person appears before the court and submits himself to the jurisdiction of the court. "In custody" does not mean that the person has to be in police or judicial custody. In the prevailing set of facts and circumstances, I have no manner of doubt that the applicant is entitled to be released on bail.