B.N. Misra, C. J.
1. This is a reference made by the Assistant Sessions Judge, Athgarh, under Section 395(2) of the Criminal P.C. of 1973, for determining an interesting question, namely whether on voluntarily surrendering to the court, a person alleged against can be released on bail ?
2. Section 439 of the Criminal P.C. provides
(1) A High Court or Court of Session may direct
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in Sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; '
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified;
When is an accused in custody is the main point in dispute.
In the case of Niranjan Singh v. Prabhakar Rajaram Kharote : 1980CriLJ426 , a Division Bench held (para 5):.The accused were not absconding but had appeared and surrendered before the Sessions Judge. Judicial jurisdiction arises only when persons are already in custody and seek the process of the court to be enlarged. We agree that no person accused of an offence can move the court for bail under Section 439 Cr. P.C. unless he is in custody.
The Supreme Court asked the self-same question by saying (paras 7 to 9):
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. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubiotics are unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose.
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 other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions. In the present case, the police officers applied for bail before a Magistrate who refused bail and still the accused, without surrendering before 'the Magistrate, obtained an order for stay to move the Sessions Court. This direction of the Magistrate was wholly irregular and may be, enabled the accused persons to circumvent the principle of Section 439 Cr. P.C. We might have taken a serious view of such a course, indifferent to mandatory provisions, by the subordinate magistracy but for the fact that in the present case the accused made up for it by surrender before the Sessions Court. Thus, the Sessions Court acquired jurisdiction to consider the bail application. It could have refused bail and remanded the accused to custody, but, in the circumstances and for the reasons mentioned by it, exercised its jurisdiction in favour of grant of bail. The High Court added to the conditions of subject to which bail was to be granted and mentioned that the accused had submitted to the custody of the court, We, therefore, do not proceed to upset the order on this ground. Had the circumstances been different we would have demolished the order for bail. We may frankly state that had we been left to ourselves we might not have granted bail but, sitting under Article 136, do not feel that we should interfere with a discretion exercised by the two courts below.
(underlinings are ours)
This decision of the Supreme Court came for consideration before a learned angle Judge in this Court in the case of Bhramar v. State of Orissa, 1981 Cri LJ 4057. The learned Judge observed after quoting Sub-section (1) of Section 437 of the Code:
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.
The grant of bail to a person pre-supposes that he is in the custody of the police or the court or if not already in such custody is under a restraint. When 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. Tile expression 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.
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, (emphasis added). Until he is arrested or detained, he is free to move about as he likes. On investigation the police may find that there is mo 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.
The decision of the Division Bench of the Supreme Court in Niranjan Singh's case (1980 Cri LJ 426) (supra) was placed before the learned single Judge and he. quoted portions thereof and observed:
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.
When this reference was placed before a learned single Judge, he directed the matter to be referred to a larger Bench for an examination of the correctness of the single Judge's decision.
3. The decision in Niranjan Singh's case : 1980CriLJ426 clearly indicates that the Court was considering directly whether the accused were in custody or not and while examining that question, the Court held that 'custody' in the context of Section 439 of the Code was 'physical control or at least physical presence of the accused in court coupled with submission to jurisdiction and orders of the Court'. The Court further indicated that the accused can be in custody not merely when the ' police arrested him, produced him before a Magistrate and got a remand to judicial or other custody. He could also be stated to be in judicial custody when he surrendered before the Court and submitted to its directions. In Niranjan Singh's case, the learned Judges had, therefore, clearly laid down that whether the accused had been taken into custody by being arrested Or had been remanded to judicial custody on being produced before a Magistrate or had surrendered before, the court and had submitted to its directions entitled him to ask for bail. All the three situations referred to above were, therefore, considered as amounting to 'custody' within the meaning of Section 439(1) of the Code.
There was no justification in our opinion for the learned single Judge of this Court to draw support for his conclusion from the facts of the case while the learned Judges of the Supreme Court never intended to confine their proposition to facts, and in paragraph 9 of their judgment they were clear about the legal aspects unconnected with facts.
A learned single Judge of the Karnataka High Court in B. Narayanappa v. State of Karnataka, 1982 Cri LJ 1334 has understood the Supreme Court decision the way we have stated. In para. 10 of his judgment, he has indicated:
In the present case also the accused having appeared before the Court had submitted to the jurisdiction of the Court and . asked for bail. As enunciated in the above decision, if the surrender and the physical presence of the accused with submission to the jurisdiction. and orders of the Court is judicial custody, then the accused petitioner herein having appeared before the Court and asked for bail, they were under restraint, and they had submitted to the jurisdiction of the Court. The Magistrate was not right in saying that he is not in a position to understand the meaning of the word appears within the meaning of the expression .custody as used in Section 439 as discussed in the said decision, with the meaning of Section 436 Cr. P.C. When the mere physical presence before the Court with a request to grant bail amounts to custody, it is more than appearance....
A Division Bench of the Gauhati High Court in State of Assam v. Mobarak Ali, 1982 Cri LJ 1816 has stated:.The meaning of the term custody is physical control or at least physical presence of the accused in Court coupled with submission to the jurisdiction and order of the Court, as explained, by the Supreme Court in Niranjan Singh v. Prabhakar : 1980CriLJ426 . Their Lordships have clearly stated:
he can be stated to be in judicial custody when he surrenders before the Court and submits to its direction..
A learned single Judge of the Calcutta High Court in the case of In Re: Digendra Sarkar, 1982 Cri LJ 2197, has also taken the same view. He has differed from the single Judge decision of this Court referred to above and has observed:
10. In my view, having regard to the express provisions of Section 437(1) of the Code and the aforesaid decision of the Supreme Court explaining the word custody it must be held that when a person accused of or suspected of the commission of a non-bailable offence appears before the learned Magistrate and surrenders or submits himself to the jurisdiction and orders of the court, he is in custody, and the learned Magistrate in the present case is required to accept the surrender of the petitioners and deal with their applications for bail. Such a person is under duress and has placed himself under the power of restraint exercisable by the Court by his physical presence before the Court and expressing his intention to submit himself to the orders of the Court.
We are inclined to agree with the learned single Judge in Digendra Sarkar's case (supra).
4. It would, therefore, follow that the decision of the learned single Judge of this Court in 1981 Cri LJ 1057, is contrary to the decision of the Supreme Court and, therefore, cannot be sustained.
In the instant case, opposite parties 1 to 8 had voluntarily surrendered before the learned Magistrate on 8-4-1981 and had been remanded to custody. On 9-4-1981, they asked to be released on bail and the learned Sub-Divisional Judicial Magistrate released them on bail. On 24-4-1981, bail was asked to be cancelled at the instance of the State. On 27-4-1981, .cause was shown by the accused persons against the notice. In support of the application for cancellation of bail, it was contended on behalf of the State that as the eight accused persons had not been taken into custody, their prayer for bail could not have been entertained by the learned Sub-Divisional Judicial Magistrate on 9-4-1981 and the direction for release was without jurisdiction. If it amounted to an application for anticipatory bail under Section 438 of the Code, it did not lie to the Sub-Divisional Judicial Magistrate. In any view of the matter, it was contended on behalf of the State that the order of the Sub-Divisional Judicial Magistrate admitting the accused persons to bail on 9-4-1981 was without jurisdiction. In view of what we have said about the law, the submission has no foundation. When accused persons surrendered to the jurisdiction of the Court and agreed to abide by the judicial direction, the Sub-Divisional Judicial Magistrate had full jurisdiction to deal with their case for bail under Section 437, Cri. P.C. and their release on bail was, therefore, not open to objection.
5. We would accordingly hold that Jthe application for cancellation of bail on the ground that bail had been granted without jurisdiction was not sustainable. We would accordingly direct its rejection.
R.C. Patnaik, J.
6. I agree.