IMPORTANT POINT
Pre-requisite of custody under Section 439 CrPC would be satisfied if accused person voluntarily surrendered to custody of the Court while applying for bail.

JUDGMENT

V. Ramkumar, J.—Petitioners, who are accused Nos.1 and 3 in Crime No.320/2010 of Valappad Police Station for offences punishable under Sections143, 147, 448, 341, 323, 324 and 308 read with 149 IPC seek a direction to the Magistrate concerned to release the petitioners on bail after considering their bail application.

2. The Sessions Court, Thrissur dismissed their application for bail as per Annexure Al order dated 24.6.2010 in Crl.M.C.No.1079/2010 on the ground that the petitioners were in custody in connection with Crime No.552/2010 of Irinjalakuda Police Station from 6.5.2010 onwards and that no formal arrest of the petitioners was recorded in Crime No.320/2010 of Valappad Police Station.

3. The petitioners were granted bail in the Irinjalakuda Crime on 1.6.2010 by the Sessions Judge, Thrissur as per Annexure A2 order. Even assuming that the petitioners were not formally arrested in this case (Crime No.320/2010 of Valappad Police Station), the fact remains that on the application filed by the petitioners counsel before the learned Magistrate, the petitioners were produced before the Magistrate on 1.6.2010 on the strength of a production warrant (vide Annexure A1 order). If so, the same could be treated as “brought before court” for the purpose of entertaining the bail application under Section 437 Cr.P.C. in the light of the decision of the Supreme Court in Niranjun Singh v. Prabhakar Raja Ram1 in which the pre-requisite of “custody” under Section 439(1) Cr.P.C. was held to be satisfied if the accused person voluntarily surrendered to the custody of the court while applying for bail, The laxity, refusal or inability of the investigating officer to make a formal arrest of the accused who are in judicial custody in another crime, cannot take away the right of the accused to apply for bail and it is enough if their presence before court is secured so that they could be treated as having surrendered to the custody of the court thereby entitling the court to entertain their bail application. Unlike Section 439(1)Cr.P.C, Section 437 Cr.P.C. does not use the expression “custody”. For invoking Section 437 Cr.P.C. it is enough if the accused person is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Magistrate.

4. Accordingly, this Crl. M.C. is disposed of permitting the counsel for the petitioners to file an application for the issue of a production warrant before the Magistrate concerned and upon production of the petitioners before the Magistrate they can, through their counsel, file an application for regular bail which shall be disposed of on merits treating the petitioners as having brought before court within the meaning of Section 437 Cr.P.C.

Petition allowed.

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