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1996 Supreme(All) 898
IN THE HIGH COURT OF ALLAHABAD
A. N. GUPTA
PAWAN KUMAR PANDEY - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
CRI. MISC. 377 Of 1996
Decided On : 08/14/1996
D.S.MISHRA
Only that Court can consider and dispose of the bail application either under Section 437 or under Section 439, Cr. P. C. in whose custody the accused is for the time being.
Headnote:
BAIL - SECTIONS 437 AND 439, CR. P. C. - CUSTODY OF ACCUSED - COURT HAVING JURISDICTION TO GRANT BAIL - ONLY THAT COURT CAN CONSIDER AND DISPOSE OF THE BAIL APPLICATION EITHER U/S. 437 OR U/S. 439, CR. P. C. IN WHOSE CUSTODY THE ACCUSED IS FOR THE TIME BEING AND MERE ISSUANCE OF PRODUCTION WARRANT U/S. 267, CR. P. C. IS NOT SUFFICIENT TO DEEM THE CUSTODY OF THAT COURT WHICH ISSUED SUCH WARRANT UNLESS THE ACCUSED IS ACTUALLY PRODUCED IN THAT COURT IN PURSUANCE OF EACH PRODUCTION WARRANTS.
Fact of the Case:
The petitioner, lodged in District Jail, Lucknow, in a case under Sections 147/148/149/302, IPC, applied for bail in another case under Sections 147/148/149/302/120-B, IPC, pending before the Chief Judicial Magistrate, Faizabad. The CJM, Faizabad, rejected the bail application on the ground that the petitioner was not in his custody. The petitioner challenged the order before the High Court under Section 482, Cr. P. C., contending that the issuance of a production warrant by the Faizabad Court deemed him to be in its custody.
Finding of the Court:
The High Court held that the issuance of a production warrant under Section 267, Cr. P. C. did not partake the character of a detention order of the Court seeking production for answering a charge or for the purpose of any proceedings pending before it. Therefore, the petitioner could not be deemed to be in the custody of the Faizabad Court merely because a production warrant had been issued.
Issues: 1. Whether a Court of a Magistrate can grant bail to an accused person when he is not in custody of that Court. 2. Whether the issuance of a production warrant under Section 267, Cr. P. C. deems the accused to be in the custody of the Court issuing the warrant.
Ratio Decidendi: 1. Section 437, Cr. P. C. provides that bail can be granted by a Magistrate to an accused involved in a non-bailable offence when he is arrested or detained without warrant by an officer in charge of a Police Station or appears or is brought before a Court. This means that the accused must be in the custody of the Court where the bail application has been moved. 2. Section 439, Cr. P. C. empowers a superior Court, namely, Court of Session and High Court to grant bail. However, the same principle of interpretation shall govern Section 439, Cr. P. C. also, as Section 437, Cr. P. C. 3. The Supreme Court has held that custody, in the context of Section 439, Cr. P. C., is physical control or at least physical presence of the accused in Court coupled with submission to the jurisdiction and orders of the Court. 4. Therefore, only that Court can consider and dispose of the bail application either under Section 437 or under Section 439, Cr. P. C. in whose custody the accused is for the time being.
Final Decision: The High Court dismissed the petition, holding that the CJM, Faizabad, was correct in rejecting the bail application as the petitioner was not in his custody.
( 1 ) THE petitioner at present is lodged in District Jail, Lucknow in Case Crime No. 206/91 under Sections No. 147/148/149/302, IPC P. S. Aminabad, District Lucknow. The petitioner is also an accused in Case Crime No. 185/96 under Ss. 147/148/149/302/120-B, IPC, P. B. Kahrajganj, District Faizabad. Chief Judicial Magistrate, Faizabad on 18-6-1996 has sent a production warrant, popularily known as warrant b to Superintendent, District Jail, Lucknow requiring him to produce the petitioner in his Court in Case Crime No. 185 of 1996. A copy of production warrant has been sent to the C. J. M. , Lucknow also. However, in pursuance of this production warrant, the petitioner has not been produced before Faizabad Court and he continues to be lodged in District Jail, Lucknow.
( 2 ) THE petitioner applied before C. J. M. Faizabad for bail in Case Crime No. 185 of 1996 referred to above. Bail application of the petitioner has been rejected by C. J. M. , Faizabad by his impugned order dated 25-6-96 in which it has been mentioned that since the petitioner is not in custody of the Court, his bail application cannot be considered. Aggrieved by it, the petitioner approached this Court u/s. 482, Cr. P. C.
( 3 ) IN the petition it has been mentioned that the Police of Faizabad and Ambedkar Nagar districts is against the petitioner who also has several enemies including enemies in politics. It has been stated that there is great apprehension that in case the petitioner is transferred from Lucknow jail to Faizabad jail, he is likely to be liquidated in transit. With these allegations, it has been prayed that Faizabad Court be directed to consider the bail application of the petitioner on merits without insisting upon his custody.
( 4 ) SRI D. S. Misra and Sri K. S. Rastogi have been heard for the petitioner and Sri Direshwar Nath, Govt. Advocate and Sri Janardan Singh, Addl. Govt. Advocate have been heard on behalf of the State.
( 5 ) THE question for consideration is as to whether a Court of a Magistrate can grant bail to an accused person when he is not in custody of that Court. It was first urged on behalf of the petitioner that since production warrant (Warrant-b) has already been issued by Faizabad Court to the Superintendent of Distt. Jail, Lucknow u/s. 267 Cr. P. C. it shall be deemed that the petitioner is in custody of Faizabad Court. It may be repeated here that in pursuance of production warrant issued by Faizabad Court the petitioner has not yet been produced before that Court and he continues to be lodged in Lucknow District Jail.
( 6 ) IT has been held by this Court in the cases of Mohd. Daud alias Mohd. Saleem v. Superintendent of District Jail, Moradabad, 1993 Cri L. J 1358 : (1993 All LJ 430), and Devi Deen v. State of U. P. , 1978 LLJ 94 that a production warrant u/s. 267, Cr. P. C. does not partake the character of detention order of the Court seeking production for answering a charge or for the purpose of any proceedings pending before it. In view of this, issuance of production warrant by Faizabad Court, cannot be considered to deem that the petitioner is in custody of that Court.
( 7 ) THE bail in this case was sought by the petitioner under S. 437, Cr. P. C. the relevant portion of which runs as follows :-"437. When bail may be taken in case of non-bailable offence - (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but -"
( 8 ) SECTION 437, Cr. P. C. clearly provides that bail can be granted by a Magistrate to an accused involved in a non-bailable offence when he is arrested or detained without warrant by an officer incharge of a Police Station or appears or is brought before a Ccourt. A perusal of S. 437 shows that the bail can be granted by a Magistrate only to that acc
