G KRISHNA REDDY Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) The Petitioner was granted anticipatory bail for 15 days in Crl. MP No.2270 of 1997 on 10-11-1997 by the Sessions Judge, then extensions were given, then he moved a fresh bail application for anticipatory bail in Crl.MP No. 1350 of 1998 in which the Sessions Judge granted anticipatory bail for a period of one month. The learned Sessions Judge observed : "Having regard to the nature and circumstances of the case and as the petitioner was granted anticipatory bail previously, the petition is allowed granting anticipatory bail to the petitioner for a period of one month with a direction that in the event of his arrest, he should be enlarged on bail on his executing a personal bond for a sum of Rs.5,000.00 with two sureties, each in a like sum, to the satisfaction of the arresting authority and meanwhile the petitioner has to seek regular bail from the concerned Court."This order was in force, the petitioner had not been arrested but surprisingly he moved on application in Crl. MP No. 1563/98 before the same Sessions Judge which he termed as a regular bail application. Although the learned Sessions Judge granted him anticipatory bail he rejected the application which was termed as regular bail. If regular bail was rejected than the petitioner should have been in the Police custody because this Court is of firm view tliat no regular bail application under Section 439 Cr.PC can be made unless the, accused is either in custody or has surrendered before the Court.Relevant portion of Section 439 is quoted below: "439. Special powers of High Court or Court of Session regarding bail:--(1) A High Court or Court of Session may direct- (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may-impose any condition which it considers necessary for the purposes mentioned in that sub-section."From bare perusal of Section 439(1)(a) it becomes clear that the jurisdiction conferred on High Court or Court of Session to grant bails to the persons is dependant on the fact that the accused was in custody. Unless the accused was in custody there can be no occassion for either the High Court or the Court of Session to exercise jurisdiction under Section 439 Cr.PC.

(2.) Therefore, in my view since the accused was neither in custody nor had surrendered before the Court below, there was no question of entertaining the regular bail application by the learned Sessions Judge. The accused is not present in this Court as well nor he is in custody therefore there can be no question of exercising jurisdiction under Section 439 Cr.PC by this Court. This Court can exercise its jurisdiction in granting bail only if the person is in custody which would mean that the person should have been either in actual custody or has surrendered before the Court.

(3.) For these reasons, this bail application is not maintainable and is accordingly dismissed. However, in the interest of justice, it is directed that, if the petitioner surrenders before the learned Sessions Judge and seek bail, he may pass appropriate orders.