Custody, in the context of Section 439 of the Cr.P.C., is determined by the physical presence of the accused before the Court and their submission to its jurisdiction and orders.

As per Hon'ble Shri Dhirendra Mishra, J. :-

1. The applicants have preferred this application under section 439 of the Code of Criminal Procedure for grant of bail as their application for regular bail has been rejected by the learned Sessions Judge, Ambikapur by the impugned order dated 3-1-2005.

2. Case of the prosecution is that complainant Phulkumari lodged a complaint on 5-9-2004 to the effect that on 24-5-2002 the applicants got a sale deed executed in respect of land bearing Khasra No. 298/5 area measuring 290 hectare in place of land bearing Khasra No. 309 area measuring 10 decimal and on the basis of said complaint Crime No. 174/2004 was registered against them at Police Station Lakhanpur for the offences punishable under sections 420, 467, 468 and 471 of the IPC.

3. The applicants apprehending their arrest in the above crime number preferred an application under section 438 of the Cr.P.C. for grant of anticipatory bail before the Sessions Court, Ambikapur which was rejected. Thereafter the applicants preferred application under Section 438 of Cr.P.C. before this Court which was registered as M. Cr. C. No. 2400/2004 and this Court vide order dated 16/11/2004 allowed the same and granted anticipatory bail to the applicants. However, the said order was to remain in force for a period of two months from the date on which it was passed and the applicants were given liberty to approach the competent Court during the aforesaid period of two months for regular bail under Section 439 of Cr.P.C. to be decided on its own merits.

4. The applicants were arrested in connection with the aforesaid offence on 12-12-2004 but however they were not taken into custody because of the protective umbrella granted by this Court. Thereafter the charge sheet was filed on 24-12-2004 by the police before the CJM, Ambikapur and the application for regular bail under Section 437 of the Cr.P.C. preferred by the applicants was rejected.

5. The applicants moved an application for regular bail in the Sessions Court under Section 439 of Cr.P.C. which was also rejected by order dated 03-01-2005. However from the application under Section 439 of Cr.P.C. filed before the Sessions Court, Ambikapur and the impugned order dated 03-012005, it appears that the applicants were not taken into custody because of the order passed by this Court on 16-11-2004 and thus the present application has been preferred by the applicants on 06-01-2005 for regular bail though they are not in custody.

6. Learned counsel for the applicants submits that even though on the basis of the registered sale deed executed by the complainant the land in question stands mutated in the name of the applicants as per the order of the Panchayat which was passed after due proclamation. The police registered the aforesaid offence and the application for grant of bail has been rejected by the Courts below on some extraneous grounds without considering the observations made by this Court in the order dated 16-11-2004.

7. It is further submitted that no additional incriminating evidence has been collected by the police which was not available in the case diary when the order dated 16-11-2004 was passed by this Court. He further submits that he approached this Court on 06-01-2005 when the order of anticipatory bail granted by this Court was in force. Learned Sessions .Judge even after rejecting the application for regular bail did not take them into formal custody and therefore the applicants should be considered to be in deemed custody as they were present before this Court on that date also. He further submits that on 03-01-2005 also the applicants were present before the Sessions Judge, Ambikilpur though their presence has not been recorded in the order of rejection of bail application. An affidavit to this effect has also been filed by the applicants,

8. On the other hand learned counsel for the State/respondent opposes the bail application and submits that even after the expiry of the pe