An accused in a case exclusively triable by the Court of Sessions cannot straightway surrender before the Court of Sessions without appearing before the Magistrate who issued the warrant of arrest against him.

Debiprasad Sengupta, J.: This revisional application has been directed against an order dated 15.12.2000 passed by the learned Sessions Judge, Bankura in Criminal Misc. Application No. 874 of 2000.

2. On completion of investigation of Bankura P.S. Case No. 200/2000 dated 2.9.2000 police submitted charge sheet against the present petitioner and others under section 307/34 of the Indian Penal Code. The present petitioner filed a petition before the learned Sessions, Judge, Bankura with a prayer for accepting surrender and for considering his prayer for bail under section 439 of the Code of Criminal Procedure. It was submitted before the learned Sessions Judge that since charge sheet has already been submitted and other accused persons are on bail, the present petitioner should also be granted bail. The said petition filed by the petitioner was opposed by the learned Public Prosecutor, who submitted that the Sessions Court cannot accept surrender of the petitioner unless the case is committed to the Court of Sessions. After hearing the submissions made on behalf of the respective parties the learned Sessions Judge rejected the prayer of the petitioner and refused to accept surrender by the impugned order. Challenging the said order of the learned Sessions Judge the petitioner has come up before this court in revision.

3. Mr. Milon Mukherjee, learned Advocate appearing for the petitioner submits that since charge sheet has already been submitted in this case and since the learned Magistrate is not empowered to grant bail to the petitioner who is an accused in a case triable exclusively by the Court of Sessions, the learned Sessions Judge is very much competent to accept surrender and to grant bail to the petitioner.

4. In support of this contention Mr. Mukherjee relies on a judgement of the Hon'ble Apex Court reported in AIR 1980 SC 785 (Niranjan Singh & Anr. vs. Pravakar Rajaram Kharote & Anr.). In the said judgement it was held by the Hon'ble Supreme Court as follows : -

“Custody, in the context of section 439, (we are not, be it noted, dealing with anticipatory bail under section 438) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court.”

“He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions. In the present case, the police officers applied for bail before a Magistrate who refused bail and still the accused, without surrendering before the Magistrate, obtained an order for stay to move the Sessions Court. This direction of the Magistrate was wholly irregular and may be, enabled the accused persons to circumvent the principle of section 439 Cr.P.C. We might have taken a serious view of such a course, indifferent to mandatory provisions, by the subordinate Magistracy but for the fact that in the present case the accused made up for it by surrender before the Sessions Court. Thus, the Sessions Court acquired jurisdiction to consider the bail application. It could have refused bail and remanded the accused to custody, but, in the circumstances and for the reasons mentioned by it, exercised its jurisdiction in favour of grant of bail. The High Court added to the conditions subject to which bail was to be granted and mentioned that the accused had submitted to the custody of the court. We, therefore, do not proceed to upset the order on this ground. Had the circumstances been different we would have demolished the order for bail. We may frankly state that had we been left to ourselves we might not have granted bail but, sitting under Article 136, do not feel that we should interfere with a discretion exercised by the two courts below.”

5. From a reading of the aforesaid judgement it appears that the learned Magistrate after rejecting the prayer for