The main legal point established in the judgment is the interpretation of 'custody' under Section 439 of Cr.P.C. and the allocation of responsibilities in the transportation of goods.

ORDER :

1. This case initially came up for hearing on 28.07.2023. On the same date, bail application was admitted and considering the submission of learned counsel for the applicant, application for grant of ad-interim bail was considered, allowed and ad-interim bail was granted to the applicant till final disposal of the main bail application. Operative portion of the order dated 28.07.2023 is extracted below for ready reference :

“Having considered the submission of learned counsel for parties and considering the facts and circumstances of the case and also having gone through the documents annexed with the application, this Court is of the view that present is a good case for grant of ad-interim bail.

It is directed that on applicant’s furnishing a personal bond in the sum of Rs.25,000/- with one surety for the like sum to the satisfaction of the concerned Court, he shall be released on interim bail till final disposal of the main petition. Accordingly, IA No.1/2023 is allowed.”

2. Learned senior counsel for the applicant would submit that when once the Court has considered and allowed the application for grant of ad-interim bail, interim bail granted to the applicant shall continue till final disposal of the bail application. There is no requirement of the applicant to surrender again before the Court below and, in turn, sending him to jail. He submits that in such circumstances, if the applicant files application for surrendering himself before the jurisdiction of this Court, then such surrender can be deemed to be in constructive custody and after such surrender, bail application filed under Section 439 of Cr.P.C. can be considered and heard finally. In support of his contention, he places reliance upon the decision of Hon’ble Supreme Court in the case of Sundeep Kumar Bafna Vs. State of Maharashtra and Anr. (2014) 16 SCC 623 and the order passed by High Court of Orissa in the case of Susanta Kumar Samantaray and Anr. Vs. State of Odisha (VIG.) (CRLMC No.1483 of 2023). He contended that the applicant is present before this Court and he has moved an application (IA No.7/2024) on 09.01.2023 and IA No.14 of 2024 dated 16.01.2024 for permission to surrender before this Court. Surrender of the applicant may be treated to be constructive custody of the Court.

3. Learned counsel for the State as also learned counsel for the complainant submit that they are having no objection to the application submitted by the applicant for his surrender before this Court.

4. It is not in dispute that this Court while admitting this bail application under Section 439 of Cr.P.C. had further considered the application submitted by the applicant for grant of ad-interim bail and as extracted above, ad-interim bail was granted to the applicant till final disposal of the bail application.

5. Section 439 of Cr.P.C. provides special power to the High Court or Court of Session regarding bail to a person who is in custody.

6. Applicant, prior to filing of bail application under Section 439 of Cr.P.C. before the Court of Sessions, was arrested and after rejection of bail application by the Court of Sessions, present application for grant of regular bail is filed. He was released on ad-interim bail pursuant to order passed by this Court.

7. Hon’ble Supreme Court in the case of Sundeep Kumar Bafna (supra) has considered the word “custody” though while considering the order rejecting the application for grant of regular bail under Section 439 of Cr.P.C. by the High Court after passing of order by Hon’ble Supreme Court considering the prayer for grant of anticipatory bail. Hon’ble Supreme Court in that case had extended to the applicant therein transient insulation from arrest for a period of four weeks to enable him to apply for regular bail. The word meaning of “custody” was considered and discussed by Hon’ble Supreme Court in para-9 which is extracted below:-

“9. Unfortunately, the terms “custody”, “detention” or “arrest” have not been defined in the Cr.P.C., and w