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2004(3) Crimes 331 (SC)
Supreme Court of India
(From Madhya Pradesh High Court)
Arijit Pasayat & C.K. Thakker, JJ.
Nirmal Jeet Kaur —Appellant
versus
State of Madhya Pradesh and Anr. —Respondents
Criminal Appeal No. 978 of 2004
(Arising out of S.L.P. (Crl.) No. 3917 of 2003)
Decided on 1-9-2004
Held : In view of the clear language of Section 439 and in view of the decision of this Court in Niranjan Singh and Anr. v. Prabhakar Rajaram Kharote and Ors. (AIR 1980 SC 785), there cannot be any doubt that unless a person is in custody, an application for bail under Section 439 of the Code would not be maintainable. The question when a person can be said to be in custody within the meaning of Section 439 of the Code came up for consideration before this Court in the aforesaid decision. The crucial question is when a person is in custody, within the meaning of Section 439 Criminal Procedure Code? When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court’s jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold to an officer with coercive power is in custody for the purpose of Section 439. The word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law. Since the expression “custody” though used in various provisions of the Code, including Section 439, has not been defined in the Code, it has to be understood in setting in which it is used and the provisions contained in Section 437 which relates to jurisdiction of the Magistrate to release an accused on bail under certain circumstances which can be characterized as “in custody” in a generic sense. The expression “custody” as used in Section 439, must be taken to be a compendious expression referring to the events on the happening of which Magistrate can entertain a bail petition of an accused. Section 437 envisages, inter alia, that the Magistrate may release an accused on bail, if such accused appears before the Magistrate. There cannot be any doubt that such appearance before the Magistrate must be physical appearance and the consequential surrender to the jurisdiction of the Court of the Magistrate. (Para 15 to 17)
If the protective umbrella of Section 438 is extended beyond what was laid down in Salauddin’s case (supra) the result would be clear bypassing of what is mandated in Section 439 regarding custody. In other words, till the applicant avails remedies upto higher Courts, the requirements of Section 439 become dead letter. No part of a statute can be rendered redundant in that manner. In the aforesaid background, the protection given to the respondent No.2 by the High Court while the application under Section 439 of the Code is pending is clearly unsustainable. Respondent No.2 would surrender to custody as required in law so that his application under Section 439 of the Code can be taken for disposal. We are very sure that the High Court will take up the matter for disposal in accordance with law immediately after the respondent No.2 is in custody as required under Section 439 of the Code. (Paras 23 and 24)
Result : Appeal allowed.
Judgment
Arijit Pasayat, J.—Leave granted.
2. Protection to the respondent No.2 Dr. Harminder Singh Bhawara under Section 438 of the Code of Criminal Procedure 1973 (in short the ‘Code’) is assailed by the appellant.
A brief reference to the factual aspects would suffice.
3. Appellant and respondent No.2 entered into a wedlock on 11.5.1997. Alleging that she has been subjected to physical and mental torture for not satisfying the demand for dowry, a complaint was lodged at Women Police Station, Jabalpur (Madhya Pradesh) on 24.2.2003 by the appellant. She alleged commission of offences punishable under Sections 498A and 506 read with Section 34 of the Indian Penal Code 1860 (for short the ‘IPC’) and Sections 3 and 4 of the Dowry Prohibition Act, 1961 (in short the ‘Dowry Act’) against respondent No.2 and some of his relatives. On 29.4.2003 respondent No.2 filed an application for protection in terms of Section 438 of the Code before the High Court of Madhya Pradesh, Jabalpur Bench, which was registered as Misc. Crl. Case No. 2890/2003. By order dated 15.5.2003 the High Court disposed of the application to the following directions:
“(i) That the petitioner shall make himself available to the police for investigation in connection with the above offences as and when required in this behalf;
(ii) That the petitioner shall not, directly or indirectly, tamper with the prosecution evidence.
(iii) The petitioner may approach the appropriate court within the period of four weeks for regular bail.”
4. It appears that respondent No.2 applied for regular bail before the Judicial Magistrate, First Class, Jabalpur, which was rejected. On 5.6.2003 prayer for bail was made before the Sessions Court, Jabalpur, but that also was rejected. On 7.6.2003 respondent No.2 filed an application in terms of Section 439 of the Code before the High Court. On 12.6.2003 the matter was listed before the vacation Judge. The matter was adjourned to 16.6.2003 when the impugned order was passed. The same reads as follows:
“This Court on 15.5.2003 in M.Cr. C.No. 2890/2003 allowed the application for bail for a period of four weeks. Looking to the nature of the case, the application of ad-interim anticipatory bail is hereby allowed on the condition of furnishing a personal bond of Rs. 20,000/- with one surety of the like amount to the satisfaction of the station Officer In-charge concerned.”
5. According to the appellant M.Cr. C.No. 3697/2003 which was filed in terms of Section 439 of the Code is still pending. The case diary was called for and in M.(Crl.) P. No. 2734/2003 the order as quoted above has been passed.
6. According to the learned counsel for the appellant the impugned order is clearly at variance with the earlier order dated 15.5.2003. By the said order the application in terms of Section 438 of the Code was disposed of and four weeks time was granted to respondent No.2 for making application in terms of Section 439 of the Code. The period was over by the time the High Court passed the subsequent order. It is a blanket order extending the ad-interim arrangement indicated in the earlier order. Since the period indicated in the earlier order was over and the respondent No.2 is not in custody in terms of Section 439 of the Code, the order is clearly not maintainable. Learned counsel for the State of Madhya Pradesh supported the stand of the appellant.
7. Per contra, learned counsel for the respondent No.2 submitted that in view of what has been stated in K.L. Verma v. State and Another (1996 (7) Scale 20), protection given by the High Court is clearly in order. It was submitted that for the purpose of making an application in terms of Section 439 of the Code, when the same is pursuant to an order passed on application under Section 438 of the Code, it is not necessary that the applicant should be in custody.
8. Sections 438 and 439 operate in different fields. Section 439 of the Code reads as follows:
“439. (1) A High Court or Court of Session may dir
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