ORDER

1. The applicant has filed this first bail application u/S.439 Cr.P.C for grant of bail. Applicant has been arrested on 26.2.2022 by Police Station Sironj District Vidisha in connection with Crime No.92/2022 registered for offence under sections 147, 148, 149 and 302 of IPC.

2. It is the submission of learned counsel for the applicant that he is suffering confinement since 26.2.2022 on false pretext and suffers for over implication. No role of the applicant can be assigned in specific terms in commission of offence.

3. Learned counsel for the applicant raised the point that incident is dated 24.2.2022 and memo under section 27 of the Evidence Act of applicant was taken on 26.2.2022 at 7:10 pm. Weapon (stick) was seized from the applicant same day at 8:15 pm which is reflected from the property seizure memo, whereas applicant was arrested at 8:45 pm which is clear from the arrest memo of the applicant. According to learned counsel, it is improbable to take memo under section 27 of the Evidence Act and to seize weapon used in the crime at the instance of applicant prior to his Arrest. It appears that false case has been registered against the applicant. He relied upon the judgment of Division Bench of this Court in the matter of Bibhacha alias Baibachha v. State of Orissa, 1998 CriLJ 1553. Thus, prayed for grant of bail.

4. Learned counsel for the respondent/State opposed the prayer and submits that name of the applicant figures in FIR and statements of witnesses. During investigation, weapon has been seized from the possession of the applicant and his role is clear in commission of offence, therefore, counsel for the respondent/State prayed for dismissal of bail application.

5. Learned counsel for the complainant also opposed the prayer and submits that even if the applicant was not taken in formal custody, even then memo under section 27 of the Evidence Act can be prepared and thereafter he can be arrested. He relied upon the judgment of Apex Court in the case of State of A.P. v. Gangula Satya Murthy, (1997) 1 SCC 272 and Dharam Deo Yadav v. State of Uttar Pradesh, (2014) 5 SCC 509. He prayed for dismissal of the bail application.

6. Heard learned counsel for the parties and perused the case diary.

7. This is a case where name of applicant figures in FIR and statements of witnesses. So far as argument advanced in respect of custody is concerned, it appears from the charge-sheet that applicant was arrested on 26.2.2022 at 8:45 pm, arrest memo indicates such date and time. It is also true that prior to his formal arrest, as per arrest memo, weapon used in commission of offence was seized at 8:15 pm which is prior in time. It is also true that his memo under section 27 of the Evidence Act has been taken at 7:10 pm. Meaning thereby, his memo was taken first and then weapon was seized, then he was arrested. There appears nothing wrong apparently in the case because custody as contemplated under section 27 of the Evidence Act does not mean formal custody only but includes such state of affair/activities whereby accused can be under the surveillance of police officers or within the range of police officers so that they can keep an effective tab or control over him.

8. The apex Court in the case of Gangula Satya Murthy (supra) in para 19 has discussed the import of custody in the following manner:

“19. The other reasoning based on section 26 of the Evidence Act is also fallacious. It is true any confession made to a police officer is inadmissible under section 25 of the Act and that ban is further stretched through section 26 to the confession made to any other person also if the confessor was then in police custody. Such "custody" need not necessarily be post arrest custody. The word "custody" used in section 26 is to be understood in pragmatic sense. If any accused is within the ken of surveillance of the police during which his movements are restricted then it can be regarded as custodial surveillance for the purpose of the section.