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2000 Supreme(Cal) 51
HIGH COURT OF CALCUTTA
Sujit Barman Roy & Debiprasad Sengupta, JJ.
Smt. Maya Rani Guin
vs.
State of West Bengal
C.R.M. No 4915 of 1999
Decided On: January 28, 2000
Somnath Banerjee for the petitioner.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 438 - ANTICIPATORY BAIL - REJECTION BY MAGISTRATE - REVISION - HIGH COURT - JURISDICTION - INHERENT POWERS - SECTION 482 - SCOPE.
Fact of the Case:
Petitioners, apprehending arrest in connection with non-bailable offences under sections 498A/307/323 IPC, obtained anticipatory bail from a Division Bench of the High Court for 3 weeks. They surrendered before the Magistrate and their prayer for regular bail was rejected, but they were not taken into custody and were given 15 days' time to obtain necessary bail order from the "upper forum." Petitioners filed an application under section 439 CrPC for regular bail in the High Court while not in custody.
Finding of the Court:
1. An application for regular bail under section 439(1) CrPC cannot be entertained unless the accused is in custody. 2. The word "custody" in the context of section 439 CrPC means physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and order of the court. 3. Mere submission to the jurisdiction or orders of the court is not enough to constitute custody. Accused must surrender to physical control of the court and remain physically present before the court apart from his submission to the jurisdiction and order of the court. 4. The extended meaning given to the word custody by the Apex Court in Niranjan Singh's case does not cover the case of the petitioners in the circumstances of the case. 5. In the instant case, the petitioners were not in custody, and therefore, their application under section 439(1) for a direction to release them on bail was clearly not maintainable. 6. The High Court cannot invoke its inherent or revisional jurisdiction to grant anticipatory bail or bail from custody as the subject matter relating to bail or anticipatory bail has been completely and exhaustively dealt with by express provisions of the Code.
Issues: 1. Whether an application for regular bail under section 439(1) CrPC can be entertained when the accused is not in custody? 2. Whether the word "custody" in the context of section 439 CrPC includes physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and order of the court? 3. Whether mere submission to the jurisdiction or orders of the court is enough to constitute custody? 4. Whether the High Court can invoke its inherent or revisional jurisdiction to grant anticipatory bail or bail from custody when the subject matter relating to bail or anticipatory bail has been completely and exhaustively dealt with by express provisions of the Code?
Ratio Decidendi: 1. The word "custody" in the context of section 439 CrPC means physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and order of the court. 2. Mere submission to the jurisdiction or orders of the court is not enough to constitute custody. Accused must surrender to physical control of the court and remain physically present before the court apart from his submission to the jurisdiction and order of the court. 3. The extended meaning given to the word custody by the Apex Court in Niranjan Singh's case does not cover the case of the petitioners in the circumstances of the case. 4. In the instant case, the petitioners were not in custody, and therefore, their application under section 439(1) for a direction to release them on bail was clearly not maintainable. 5. The High Court cannot invoke its inherent or revisional jurisdiction to grant anticipatory bail or bail from custody as the subject matter relating to bail or anticipatory bail has been completely and exhaustively dealt with by express provisions of the Code.
Final Decision: The petitions were dismissed as they were not maintainable. The High Court cannot invoke its inherent or revisional jurisdiction to grant anticipatory bail or bail from custody as the subject matter relating to bail or anticipatory bail has been completely and exhaustively dealt with by express provisions of the Code.
Sujit Barman Roy, J. : Petitioners are apprehending arrest on an accusation of having committed some non-bailable offences under sections 498A/307/323 I.P.C. in connection with Nanoor P.S. Case No. 44/99. Petitioners obtained following order under section 438 Cr. P.C. from a Division Bench of this Court on 16.9.99:-
"This is an application under section 438 of the Code of Criminal Procedure for anticipatory bail by the petitioners who apprehend that they may be arrested in connection with Nannor P.S. Case No. 44/99 dated 10.8.99 under section 498A/307/323 of the Indian Penal Code.
Having heard the learned Advocate for the petitioner (s) as well as the learned Advocate for the State and on perusal of the case diary, we pass the following order:
In the event of the petitioner (s) being arrested in connection with the aforesaid case they will be released on bail subject to the following conditions:
(i) that the petitioner (s) shall make themselves available for interrogation by a police officer as and when required,
(ii) that the petitioner (s) shall not directly or indirectly make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer,
(iii) that the petitioner No.1 Patai Sk., shall meet the I.O. of the concerned police station once a week.
This order of anticipatory bail would remain operative for a period of 3 (three) weeks from today subject to the decision of the Supreme Court passed in the case of K.L. Verma vs. State and Anr., S.L.P: (Crl.) Nos. 3278 and 3278A of 1996.
If any application for bail is hereafter made by the petitioner (s) before an appropriate court under sections 437/439 Cr. P.C. the same shall be disposed of by such court in accordance with law."
2. Soon after that petitioners surrendered before S.D.J.M., Bolpur on 1.10.99 with a prayer for bail. S.D.J.M. by his order dated 1.10.99 rejected the said prayer for bail. They were, however, not taken into custody and were given 15 days time to obtain necessary order of bail from 'the upper forum." Operative part of the said order reads as under:-
".....In such view of the matter, the prayer for regular bail of the accused is rejected. They are however not taken into custody in the light of the decision reported in 1997 CLR (Cal.) 346. The accused are given 15 days time to obtain necessary order of bail from the upper forum."
Said 15 days' time was further extended up to 4.12.99 on a prayer of the petitioners. In these circumstances, petitioners have filed the instant application being C.R.M. 4276/99 for regular bail under section 439 Cr. P.C. in this Court. None of the petitioners are in custody as recorded by the S.D.J.M in his aforesaid order dated 16.9.99. Now the question we are called upon to decide is whether an application for regular bail under section 439 Cr. P.C. is maintainable at instance of a person who is not in custody?
3. Petitioners have approached this Court in this application under section 439 Cr. P.C. for regular bail though they are not in custody. This is an application under section 439 Cr. P.C.
4. It is undoubtedly true that the Division Bench granted anticipatory bail to the petitioners and directed that such order of anticipatory bail would remain operative for three weeks from the date on which such order was passed subject to the decision of the Supreme Court passed in the case of K.L. Verma vs. State, S.L.P. (Crl.) Nos. 3278 and 3278A of 1996. Division Bench further directed that if any application for bail is made by the petitioners thereafter before an appropriate court under section 437/439 Cr. P.C, same should be disposed of by such Court in accordance with law.
5. It is also true that the Apex Court in the case of K.L. Verma in the last sentence of paragraph 4 thereof issued the following direction:-
"As far as the order of 9.10.96 is concerned, since it proceeds on a misreading of Salouddin's case, we modify the ord
