The main legal point established is that the accused being in judicial custody at the time of filing the application under Section 439 of Cr.P.C. makes the application maintainable, even if they were not in custody at the time of filing.

JUDGMENT :

Vishal Mishra, J.

1. The application under Section 439 (2) of Cr.P.C. for cancellation of bail granted by the learned trial Court for offence registered at Crime No. 20/2020, Police Station Rampur Kalan, District Morena under Sections 304-B, 498-A IPC and Section 3 and 4 of the Dowry Prohibition Act.

2. It is argued that criminal case was registered against the respondents no. 2 and 3 for the aforesaid offences. They preferred an application seeking first anticipatory bail before this Court which was registered as M.Cr.C. No. 20231/2020 (Samle alias Sanalia Yadav and another Vs. State of M.P.) and the same was rejected on merits by this Court vide order dated 09.07.2020. Thereafter, another anticipatory application was filed as M.Cr.C. No. 27581/2020 which was allowed on 28.07.2020. Second anticipatory bail was granted to the petitioners for 15 days.

3. It is argued that the respondents no. 2 and 3 have filed an application under Section 439 of Cr.P.C. seeking regular bail before the learned trial Court on 04.09.2020 showing themselves to be in custody. The learned Session Court has called for the case diary and fixed the matter on 05.09.2020. On 05.09.2020, when the case was called up, the respondents no. 2 and 3 were taken in court custody and the application was allowed and they were released on regular bail. It is argued that once they are not in custody, the application filed under Section 439 of Cr.P.C. mentioning that they are in custody is not maintainable. He has drawn attention of this Court to the relevant provision of Section 439 of Cr.P.C. and has argued that the first and foremost condition for maintainability of the application under Section 439 of Cr.P.C. is that the accused should be in custody. The accused is not in custody then the application is not maintainable. He has relied upon the judgments passed in the case of Sundeep Kumar Bafna Vs. State of Maharashtra and Another, 2014 (16) SCC 623. It is further contended that the learned trial Court has exceeded its jurisdiction and is entertaining the application under Section 439 of Cr.P.C. Despite of the fact that the respondents no. 2 and 3 were not in custody. Learned trial Court, on the date of hearing, has directed the clerical staff to take the respondents no. 2 and 3 in court custody and thereafter has heard the application which is not permissible and contrary to the provision of Section 439 of Cr.P.C. therefore, the application is being filed seeking cancellation of bail.

4. Per contra, learned State counsel has supported the arguments of the petitioner and has submitted that the bail application filed under Section 439 of Cr.P.C. was not maintainable at the time of filing because the accused were not in custody.

5. Counsel appearing for the respondents no. 2 and 3 has opposed all the arguments and has contended that they has preferred an application under Section 438 of Cr.P.C. seeking anticipatory bail. The application was registered as M.Cr.C. No. 27581/2020 and the same was allowed for a period of 15 days vide order dated 28.08.2020 and in pursuance to the order of anticipatory bail, they have already furnished the bail bonds. Thereafter, they have preferred an application on 04.09.2020 under Section 439 Cr.P.C. seeking regular bail. It is argued that the umbrella was already granted by the High Court to the respondents no. 2 and 3 and they were already on anticipatory bail, therefore, they were not required to even surrender at the time of fulfilling the regular bail. It is further pointed out that on the date of hearing of the application i.e. 05.09.2020, the respondents no. 2 and 3 they were taken in judicial custody as reflected from the impugned order. Once they were taken into judicial custody, they are in custody of the court, therefore, the application under Section 439 Cr.P.C. was maintainable. In such circumstances, learned trial Court has not committed any error in allowing the application. They have prayed for dismissal of the pet