The High Court does not have the power to grant bail to an accused who has not surrendered before a Magistrate or Sessions Judge.

( 1 ) IS application for bail has been moved by Sheronun Singh who has filed an affidavit in support of his application alleging that he was arrested on 5-6-1983 by the police of police station Besinda, district Banda and was taken to an unknown destination. Thereafter, successive complaints and applications were made to the Chief Minister Secretary. Home Department. D. I. G. of Police and I. G. of Police but the illegal arrest of the applicant. An application was also made to the Additional Court of Munsif/magistrate, Banda complaining of the arrest. Copies of these applications have been annexed. The police demanded illegal gratification for release of the applicant and put their demand very high which could not be fulfilled and thereafter the plan was to do away with the accused in a fake encounter. The applicant fall away from the police custody and a report about the matter was published in the Blitz issue dated 30-7-83. The police has framed two cases namely Crime No. 35 of 1983 under Sections 395/397 Indian Penal Code and Crime Nos. 38 to 41 of 1983 under Sections 399/402, Indian Penal Code and under Section 25 Arms Act from police station Besinda. It is alleged in the affidavit that there is danger to the life of the applicant at Banda and that the applicant would surrender before the Honble Court at the time of the hearing of the bail application. This application for bail accordingly has been moved without moving the Court of the Magistrate or Sessions Judge at Banda and without surrendering to the judicial custody at Banda. 6. I have read the ruling very carefully. That case arose from Bombay and the facts of that case were that a complaint was filed against certain police-men and after taking evidence under Section 202 Criminal Procedure Code non-bailable warrants was issued for the production of the accused. The execution of these warrants was meanwhile stayed by the Magistrate at-the instance of the accused. The accused then moved the Sessions Court for bail and the Sessions Judge granted bail subject to certain directions and conditions. We are unable to gather from the report of a ruling as to what were those directions and conditions. Thereafter, it appears that the complainant moved High Court for reversal of the order and the High Court declined to interfere and again added certain conditions to ensure that the bail was not refused and the course of justice was not thwarted. The argument that the accused were not in custody and hence the bail could not be granted, was repelled in the following terms of paras 6 to 9 of the ruling which read as under- 6. Here the respondents were accused of offences but were, not in custody, argues the petitioner. So no bail, since this basic condition of being in jail is not fulfilled. This submission has been rightly rejected by the Courts below. We agree that, in our view, an outlaw cannot ask for the benefit of law and he who flees justice cannot claim justice. But here the position is different. The accused were not absconding but had appeared and surrendered before the Sessions Judge, Judicial jurisdiction arises only when persons are already in custody and seek the process of the court to be enlarged. We agree that no person accused of an offence can move the court for bail under Section 439 Criminal Procedure Code unless he is in custody. When is a person in custody, within the meaning of Section 439 Criminal Procedure Code? When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered

( 2 ) HIMSELF to the courts jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor presidential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of Sectio