2018 Supreme(P&H) 2677

IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mrs. Justice Daya Chaudhary
CRM-M No.26466 of 2018 (O&M)
Davinder Bhadana
v.
State of Haryana
{Decided on 24/08/2018}

Bail – Cheating – Interim bail was granted to settle the dispute but there was no settlement – Non reaching at compromise is not a ground to decline regular bail.
Bail – In Custody – Meaning of – It is not necessary that petitioner is in custody only after arrest by the police or he is produced before a Magistrate and gets remand to judicial or other custody – Petitioner can be stated to be in judicial custody when he surrenders before the Court and submits to its directions
Bail – In Custody – For availing benefit of regular bail, the petitioner should be in custody – The petitioner was in custody as he surrendered before the trial Court prior to raising of the arguments in a bail application before High Court – Therefore, it cannot be said that the petitioner was not in custody

Headnote:(A) Criminal Procedure Code, S.439 – Cheating – Bail – Forgery – Regular bail was declined to petitioner only on the ground that he got interim bail to settle the dispute but there was no settlement – Non reaching at compromise is not a ground to decline bail – Settlement could be possible if both the parties were arriving – Held; Trial Court should have decided the regular bail on merits instead of dismissing on technical grounds – Bail granted – Indian Penal Code, 1860, S.420 & S.467.

       (B) Criminal Procedure Code, 1973, S.439 – Bail – In Custody – Meaning of – Held; it is not necessary that petitioner is in custody only after arrest by the police or he is produced before a Magistrate and gets remand to judicial or other custody – Petitioner can be stated to be in judicial custody when he surrenders before the Court and submits to its directions. (Para 12)

       (C) Criminal Procedure Code, 1973, S.439 – Bail – In Custody – For availing benefit of regular bail, the petitioner should be in custody – The petitioner was in custody as he surrendered before the trial Court prior to raising of the arguments in a bail application before High Court – Subsequently, the arguments that petitioner was not in custody cannot survive. (Para 13)

       (D) Criminal Procedure Code, 1973, S.299 and S.82 – Absconded Accused – Before declaring the accused as an ‘absconder’, the Court has to satisfy itself that the accused has left his permanent residence or is avoiding service or there is no chance of arrest in near future – Section 299 Cr.P.C. is clear wherein it is mentioned that when an accused is declared absconder, the Magistrate has to record the statement of the witnesses produced by the prosecution so that it can be read in evidence in the contingency shown in the Section itself. (Para 14)

       (E) Criminal Procedure Code, 1973, S.299 and S.82 – Absconded Accused – Procedure to declare the accused as ‘absconder’ discussed. (Para 15)

       In case the presence of the absconding accused is not secured despite making all efforts, he can be declared absconder by following the prescribed procedure. In case where only one accused is there in the case then notices are issued by the Court against the absconding accused to secure his presence and in spite of making all efforts, if the presence of accused is not secured then bailable warrants and, thereafter non-bailable warrants are issued if required. In case the presence of accused is not secured, proclamation under Section 82 Cr.P.C. is to be issued and, thereafter, to proceed further with the provisions of Section 83 Cr.P.C. After the proper procedure has been followed and recording satisfaction of the Court that accused is absconding then Court can declare the accused as an absconded accused and can proceed to record evidence under Section 299 Cr.P.C.

       (F) Criminal Procedure Code, 1973, S.439 – Bail – In Custody – An accused who is not in custody cannot apply for regular bail under Section 439 Cr.P.C. – A person is stated to be in custody who is under control of the Court or in the physical hold to an officer of the coercive power is in custody for the purpose of Section 439 Cr.P.C. – By considering the word ‘custody’ it is also necessary to mention that two words are there i.e. actual imprisonment or physical detention – A person who is on probation or parole or released on bail or on own recognizance have been held to be ‘in custody’ for the purpose of habeas corpus. (Para 16)