P.K. Mohanti, J.
1. This is an application for grant of bail under the provisions of Section 439. Cr.P.C.
2. On 21-12-1980. Rajan Dalai, a watcher of Dhuka Project, Nayagarh lodged F.I.R. at the police station' alleging that the petitioners committed theft of barbed wires from the store-yard of the Project and on being detected they confessed their guilt before him and left the stolen articles on the river bed.
3. The petitioners surrendered before the learned Sub-divisional Judicial Magistrate, Nayagarh and moved for bail. The prayer for bail was rejected on the grounds that the petitioners had neither been arrested nor detained by the police nor were they under any sort of restraint and that an application for anticipatory bail did not lie to the court of a Magistrate.
4. Aggrieved by the aforesaid order, the petitioners have filed this application under Section 439, Cr.P.C. for grant of bail. It is contended that the petitioners are innocent and the case has been falsely foisted against them at the instance of their enemies.
5. Mr. R.Ch. Mohanty, the learned Counsel for the petitioners submitted that the petitioners having surrendered to the custody of the court they were entitled to be released on bail, even though they were neither arrested nor detained nor any process had been issued against them from the Court.
6. The question for determination is whether under Section 439, Cr. P.C. bail can be granted to a person who has not been arrested by police or for whose apprehension a warrant has not been issued, but who appears and surrenders before the court stating that he apprehends arrest as a person suspected of the commission of a cognizable offence.
7. Sections 436, 437, 438 and 439 deal with the powers of the court in the matter of grant or refusal of bail. Section 436 deals with grant or refusal of bail in bailable offences. Section 437 deals with grant or refusal of bail in non-bailable offences by a court other than the High Court or the Court of Session. Section 438 deals with grant of anticipatory bail which means bail in anticipation of arrest. The power under this Section has been conferred on the High Court and the Court of Session. The section does not take in its ambit the case of an accused against whom a court has already issued process by taking cognizance of the offence. Section 439 deals with special powers of High Court or Court of Session regarding bail, Under Sub-section (1), Clause (a) of Section 439, the High Court or the Court of Session can direct that a person accused of an offence and in custody be released on bail and may impose conditions if the offence is of the nature specified in Section 437(3). Under Clause (b), it can set aside or modify any condition imposed by the Magistrate while granting bail to a person. Under Sub-section (2), it can cancel bail granted by itself or by the lower court. Thus, the power under Section 439, Cr.P.C. is supplementary or subsidiary in that it completes the provisions in Sections 436 and 437 with regard to the grant of bail, So the question whether a person who is not in custody or one who is not required to surrender to any custody can be granted bail under Section 439. Cr.P.C. must, therefore, be determined with reference to the provisions of Section 437, Cr.P.C.
8. Section 437, Cr.P.C. runs as follows: '437. When bail may be taken in case of non-bailable offence-
(1) When any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court, other than the High Court or Court of Session, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life:....
(Rest omitted as unnecessary).
This section contemplates grant of bail when a person accused of or suspected of the commission of any non-bailable offence is under arrest or detained or when he appears or is brought before a court. It is contended on behalf of the petitioners that the word 'appears' used in Section 437, Sub-section (1) indicates that a person accused of or suspected of the commission of any non-bailable offence can be released on bail even if he is not arrested or detained or brought before a court, but he voluntarily appears before the court and moves for bail.
9. The grant of bail to a person presupposes that he is in the custody of the police or of the court or if not already in such custody is under a restraint. When a person is arrested or detained or is brought before a court he 'Is no doubt under a restraint. The words 'arrested' and 'detained' are used to signify arrest and detention by a police officer. The expressions 'appears' and 'is brought' are used to signify appearance and arrest in obedience to a process of the court. The expression 'is brought before a court' is used in relation to the issue of a warrant while the expression 'appears' is used in relation to the issue of a summons. Sections 238 and 244, Cr.P.C. which relate to trial of warrant cases by Magistrate also use similar expressions. These expressions appear to have been used in the same sense in Section 437. Cr.P.C.
10. 'Appearance' is also possible in two other ways. If a Magistrate issues a bailable warrant and the officer to whom the warrant is directed, releases an accused on his furnishing a bail-bond, he is required to attend the court on the date fixed. In such a case, he appears in court in compliance with the bail-bond furnished by him. Similarly, a person, knowing that a warrant or summons has been issued against him, may voluntarily surrender and, thus, submit himself to the jurisdiction of the court. Evidently in such cases, the accused is under a restraint and he appears and moves for being enlarged on bail. If, however, he has not been arrested nor detained nor any process has been issued against him from the court, he cannot be said to be under a restraint and no bail will be granted to him merely because he appears before the court and prays for grant of bail in anticipation of any such action against him. A mere possibility of a person being arrested cannot amount to a restraint for the purpose of grant of bail under Sections 436, 437 and 439. Until he is arrested or detained, he is free to move about as he likes. On investigation the police may find that there is no sufficient reason to arrest him or on interrogation he may be able to offer satisfactory explanation which may convince the police that he is innocent. Thus, in my opinion, Sections 437 and 439 ,do not confer powers on the Magistrate or the Court of Session or the High Court to grant bail to a person who had not been placed under restraint by arrest or otherwise.
11. A person who is accused of or suspected of the commission of any non-bailable offence and is not under any restraint and apprehends arrest may move the Court of Session or the High Court for anticipatory bail for which separate provisions have been made in Section 438, Cr.P.C.
12. In the present case, the petitioners have invoked the jurisdiction of this Court under Section 439, Cr.P.C. and have not made >out a special case for grant of anticipatory bail. They had not been arrested nor was any warrant issued for their arrest, nor was there any order issued by the police under Section 55, Cr.P.C. for their arrest but they voluntarily appeared before the learned Magistrate and prayed for grant of bail. Mere appearance in court by a person does not confer upon the court the powers to enlarge him on bail on the ground that a case has been registered against him and the police is likely to arrest him in that case. A person who is under no previous restraint does not need any order of bail under Sections 436, 437 and 439, Cr.P.C. as he is free to move about as he likes. The learned Magistrate was, therefore, justified in rejecting the prayer for bail1 since the basic condition of being under a restraint was not fulfilled.
13. Mr. R. Ch. Mohanty, the learned Counsel for the petitioners relied on a decision reported in : 1980CriLJ426 (Niranjan Singh v, Prabhakar Rajaram) wherein it was observed as follows :-
When is a person in custody, within the meaning of Section 439, Cr.P.C. 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....
Custody, in the context of Section 439, (we are not, be it noted, dealing with anticipatory bail under Section 438) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court.
He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or either custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions....
(Vide paragraphs 7 to 9)
It appears from the narration of facts of the case referred to above that non' bailable warrants had been issued by the Magistrate for production of the accused persons and their bail application had been rejected. Thereafter they surrendered before the Sessions Judge and moved for bail. Thus, the accused being under restraint moved the Sessions Judge for bail and the Sessions Judge acquired jurisdiction to grant bail. It is in these circumstances that the aforesaid observations were made by their Lordships.
14. In the result, the application for 'bail stands rejected.
Nothing stated in this order shall be construed as precluding the petitioners from moving the Magistrate ' for bail, if necessary, at the appropriate stage.