JUDGMENT

R.N. Misra, C.J. - This is a reference made by the Assistant Sessions Judge, Aligarh, under section 395(2) of the Code of Criminal Procedure of 1973, for determining the interesting question, namely whether on voluntarily) surrendering to the Court, a person alleged against can be released on bail?

2. Section 439 of the Code of Criminal Procedure provides:

"(1) A High 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;

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:

"When is an accused in custody, is the main point in dispute.

3. In the case of Niranjan Singh and another v. Prabhakar Rajaram Kharote and other.1, a Division Bench held:

"... The accused were not absconding but had appeared and surrendered before the Sessions Judge. Judicial jurisdiction arise only when persons are already in custody and seek the process of the court to be enlarged. We agree that no person accused of a