1.

The applicant has filed this first bail application u/S.439 Cr.P.C for

grant of bail. Applicant has been arrested on 26-02-2022 by Police

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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 26-02-2022 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 24-02-2022 and memo under Section 27 of the Evidence Act of

applicant was taken on 26-02-2022 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 Vs. 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.

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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. Vs. Gangula

Satya Murthy, (1997) 1 SCC 272 and Dharam Deo Yadav Vs. 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 26-02-2022 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

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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