LAWS(ORI)-2006-9-43

NARENDRA BARGE AND ORS. Vs. STATE OF ORISSA

Decided On September 21, 2006
Narendra Barge And Ors. Appellant
V/S
STATE OF ORISSA Respondents

JUDGEMENT

(1.) THE Petitioners are facing trial for alleged commission of offences under Sections 341/302/34 Indian Penal Code in G.R. Case No. 85 of 2005 pending before the JMFC, Rampur. They had surrendered before the Court below on 16 -9 -2005 and their prayer for bail having been rejected they had been remanded to custody. It is stated that in spite of completion of 125 days from the date of their remand to custody as no charge -sheet was filed against them they filed an application before the Court below under Section 167(2) Code of Criminal Procedure on 19 -1 -2006 to be released on bail. Learned Court below after hearing the parties rejected their prayer holding that as they had not been arrested by police nor forwarded to Court, the provisions of Sub -sections (1) and (2) of Section 167 Code of Criminal Procedure was not applicable to their case. Being aggrieved by the order of the JMFC, the Petitioners filed Criminal Revision No. 6/5 of 2006 which was heard and disposed of by the Addl. Sessions Judge, Sonepur. The said revisional Court observed that as charge -sheet had been filed in the meanwhile the Petitioners could not be released on bail under the Proviso (a)(i) to Sub -section (2) of Section 167 Code of Criminal Procedure, more so because the Petitioners had neither been arrested by police nor forwarded to Court and accordingly the requirements of Section 167 were not satisfied. Both the orders of the JMFC and the Addl. Sess. Judge are assailed in this CRLMC by the Petitioners invoking inherent jurisdiction of this Court under Section 482 Code of Criminal Procedure.

(2.) TO appreciate the contention of the Petitioners, it would be prudent to refer to the relevant provisions of Section 167 Code of Criminal Procedure which read as follows:

(3.) THE word 'custody' appearing in Section 439 of the Code has been interpreted by the Supreme Court in the case of Niranjan Singh and Anr. v. Pravakar Rajaram Kharot and Anr., reported in : AIR 1980 SC 785, that no person accused of an offence can move the Court for bail under Section 439 unless he is in custody, which otherwise means that he is in physical control or at least physically present in Court. The accused can be in custody not merely when the police arrests him and produces before the Magistrate and gets a remand to judicial or other custody, he can also be in judicial custody when he surrenders before the Court and submits to its discretion.