The main legal point established in the judgment is the interpretation of 'custody' within the meaning of Section 439 of CrPC and the application of constructive custody in determining the eligibility for release on bail.

JUDGMENT :

1. Heard Sri Anoop Trivedi, Senior Advocate assisted by Sri Abhijeet Singh and Sri Anupam Dubey Advocates, the learned counsel for the applicant, Sri Dinesh Kumar Srivastava Advocate, the learned Additional Government Advocate, Sri Vikrant Rana Advocate, the learned counsel for the informant and perused the record.

2. The instant application has been filed seeking release of the applicant on bail in Case Crime No. 0222 of 2021, under Sections 420 and 120-B IPC, Police Station Noida Sector-39, District Commisionerate Gautam Budh Nagar during pendency of the trial in the Court below.

3. The aforesaid case has been registered on the basis of an F.I.R. dated 02-05-2021 lodged by an official of M/s CMS Infosystems Pvt. Ltd. against three named accused persons – (i) Vipendra Kumar, Custodian Employee, (ii) Suraj Singh, Custodian employee and (iii) Aayush, alleging that the company CMS Infosystems Pvt. Ltd. provides services of loading and unloading of cash in ATMs and withdrawal and deposit of cash, to Bank of Baroda. Between 18:30 and 20 :15 on 22-03-2021, the accused persons took out Rs.2,95,000/-that had been deposited by the Bank’s customers in a BNA Machine and they repeatedly deposited the same amount in several bank accounts and thus they embezzled a total amount of Rs.26,63,500/-. The incident was recorded in the close circuit camera and the company came to know about it through the Bank’s email dated 27-04-2021.

4. At the very outset, Sri Vikrant Rana Advocate, the learned counsel for the informant has raised a preliminary objection that the applicant had been arrested on 21-06-2021 and he was released on short term bail on 25-06-2021 and presently the applicant is not in custody and a person’s bail application can only be considered when he is in custody. His submission is that for the aforesaid reason, the instant application seeking release of the applicant on bail is not maintainable.

5. Section 439 of the Criminal Procedure Code provides as follows : -

“439. (1) A High Court or Court of Session may direct—

that any person accused of an offence and in custody be re leased on bail, and if the offence is of the nature specified in sub section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified.”

6. Sri Vikrant Rana has placed reliance upon the judgment in the case of Niranjan Singh v. Prabhakar Rajaram Kharote, (1980) 2 SCC 559, in which the Hon’ble Supreme Court explained the phrase “in custody” in the following words : -

“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 one 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 CrPC unless he is in custody.

7. When is a person in custody, within the meaning of Section 439 CrPC? 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 himself to the court’s jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential 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 Section 439. This word is of elast