BISHNU MALLICK Vs. STATE OF ORISSA

JUDGEMENT

(1.) An Assistant Sessions Judge acting as the Additional Sessions Judge, Jaipur having refused the applications of the petitioner to accept his surrender and release him on bail, he has filed his application under Section 482 of the Code of Criminal Procedure raising the question that once an accused surrenders before the Court and files an application for bail, the Additional Sessions Judge is either to allow him to go on bail or refuse the bail and remand him to custody, but cannot pass orders refusing to accept his surrender and entertain the application for his bail. The brief facts necessary to elucidate the submission are that the petitioner involved in an offence under Section 436, I.P.C. at the instance of the opposite party No. 2 as the informant. The police having submitted final form, the informant filed a complaint alleging offence under the same Section on which after holding an inquiry under Section 202, Cr. P.C., the learned S.D.J.M. directed issue of summons to the petitioner. On receipt of summons, the petitioner moved an application before the Additional Sessions Judge, Jaipur to accept his surrender and also moved another application for bail. The learned Addl. Sessions Judge being absent, the Assistant Sessions Judge remaining in charge passed orders that in view of the decision of this Court reported in 1991 (1) Orissa LR 138 (Smt. Basanta Sahu v. Padma Charan Sahu) deprecating the developing practice of seeking bail under Section 439, Cr. P.C. from the Sessions Judge whereas the matter is to be first dealt with by the Court of the first instance, and observing that the Magistrate should be first approached for the purpose instead of the Sessions judge, refused to accept the surrender of the petitioner and rejected both the applications.

(2.) Mr. Dhal, learned counsel for the petitioner, has urged, relying on AIR 1980 SC 785 : (1980 Cri LJ 426) (Niranjan Singh v. Prabhakar Rajaram Kharote), that once an application is filed before the Additional Sessions Judge surrendering before him and moving for bail under Section 439, Cr. P.C., the petitioner must be taken to be in judicial custody for which reason it is mandatorily required that his application for bail is to be entertained and disposed of either allowing or rejecting it. No third course is open to the Additional Sessions Judge i.e. not to accept the surrender. According to him, the very moment the petitioner for surrendering before the Court is filed and that application is taken up for consideration, the applicant having surrendered himself in Court is in custody as contemplated under Section 439, Cr. P.C.

(3.) The submission does not enjoy support of law. 'Custody' always involves a concept of two parties, one who takes into custody of the other whose custody has been taken of. To effect a custody, the first one must act, though the other may either be active or be passive. It is true that when a petition is made by an accused surrendering before a Court, he offers his own custody to the custody to the Court. The Court if it accepts the application and assumes custody, it has accepted the custody of the accused and thereafter is bound to deal with him on his application for bail either to refuse or allow the same. In the event it is refused, the Court has to remand him to either police or judicial custody. It is however another thing to say that on the filing of the surrender application the Court must of necessity be deemed to have taken custody. There is no warrant for such proposition. An application under Section 439, Cr. P.C. is maintainable both before the Court of session as well as he High Court. Conceeding to the submission of Mr.Dhala would meant that if in respect of summons or warrants issued by a Magistrate surrender is made before the High Court or the Court of Sessions and an application for bail is moved without surrendering to the custody of the Magistrate, the High Court or the Court of Session will be bound to deal with the application for bail of the petitioner and would have no power to direct him to surrender before the Magistrate and direct the Magistrate to consider the application for bail. This would give a meaning to Section 439, Cr. P.C. not contemplated under the Code. It is for such reason that the observation was made, as has been rightly referred to by the learned Court below, in 1991 (1) Orissa LR 138 (supra) depricating the practice of persons moving at the very first instance either the Court or the Sessions Court without going to the Court which issued the summons or warrant.