A person appearing before a court may apply for bail under S.439 of the Code, even if not in custody, as they subject themselves to the court's jurisdiction.

1. Heard.

2. By these applications under S.439 of the Code of Criminal Procedure (for short 'the Code'), the applicants seek bail in connection with an offence registered at CR No. 109 of 2006 with Saswad Police Station, Pune punishable under S.306 and 506 read with 34 of the Indian Penal Code.

3. Apprehending her arrest, Snehlata Vikram Kamble, the applicant in Application No. 36 of 2000, had previously made an application for anticipatory bail before the Sessions Court, Pune. By an order dated 10th October, 2006, the Additional Sessions Judge allowed the application and granted pre arrest bail to her in the sum of Rs. 10,000. However, the application made by Ritesh Gayal, the applicant in Application No. 35 of 2008, was rejected by the Sessions Court. He therefore moved this Court for anticipatory bail. By an order dated 22nd December, 2006 passed in Criminal Application No. 4568 of 2006, this Court (Coram: S. C. Dharmadhikari, J.) granted him pre arrest bail in the sum of Rs.10,000 with a direction that the order would ensure to his benefit only till the charge sheet was filed. The Court further directed that thereafter he would be free to apply to the appropriate Court for regular bail. The direction that the order of anticipatory bail would be limited till the charge sheet was filed was issued in accordance with the law laid down by the Supreme Court in Salauddin Abdul Samad Shaikh v. State of Maharashtra , 1996 KHC 653 : AIR 1996 SC 1042 : 1996 (1) SCC 667 : 1996 SCC (Cri) 198. Therein the Supreme Court has held that the order for an anticipatory bail should be of a limited duration and ordinarily on expiry of that duration or extended duration, the Court granting anticipatory bail should leave it to the regular Court to deal with the matter of grant of bail on appreciation of evidence placed before it after the investigation had made progress or the charge sheet was submitted.

4. In the present case, after completing the investigation, the charge sheet has been filed by the police in the Court of Judicial Magistrate, First Class, Saswad on 3rd November, 2007. I am informed at the bar that the committal order under S.209 of the Code has not yet been passed. However, as the order for anticipatory bail granted by this Court ended on 3rd November, 2007 on filing of the charge sheet before the Magistrate, the applicants appeared before the Sessions Court on 12th November, 2007 and filed two separate applications for regular bail. By a common order dated 18th December, 2007 the learned Sessions Judge, Pune rejected both the applications on the ground that since the applicants had not surrendered before the learned Magistrate and were not in custody, the provisions of S.439 of the Code were not applicable and the applicants were not entitled to apply for bail.

5. In my view, the view taken by the learned Additional Sessions Judge that a person, who is not in custody (either police or magisterial), is not entitled to apply for bail under S.439 of the Code is not correct. It is true that S.439 of the Code empowers the Sessions Court or the High Court to grant bail to a person accused of an offence and who is in custody. However what is the meaning of the expression 'person in custody'? A person, who goes before a Magistrate (or Court of Session) and applies for bail by personally appearing before him subjects himself to the jurisdiction of the Magistrate. Can he be regarded as a person in custody for the purpose of grant of bail? In my view, the question must be answered in the affirmative. When a person personally present in the Court makes application for bail, he subjects himself to the jurisdiction and command of the Court. He c