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Saturday, March 29, 2014

Sec.439 I.P.C. - arrest / surrender before court - once the surrender is accepted, the court has to look on the merits of granting bail ? - the appellant filed a bail application under sec.439 and also surrender petition - High court held that when the Appellant’s plea to surrender before the Court is accepted and he is assumed to be in its custody, the police would be deprived of getting his custody, which is not contemplated by law, and thus, the Appellant “is required to be arrested or otherwise he has to surrender before the Court which can send him to remand either to the police custody or to the Magisterial custody and this can only be done under Section 167 of CrPC by the Magistrate and that order cannot be passed at the High Court level.” - Apex court held that the learned Single Judge erred in law in holding that he was devoid of jurisdiction so far as the application presented to him by the Appellant before us was concerned. Conceptually, he could have declined to accept the prayer to surrender to the Courts’ custody, although, we are presently not aware of any reason for this option to be exercised. Once the prayer for surrender is accepted, the Appellant before us would come into the custody of the Court within the contemplation of Section 439 CrPC. The Sessions Court as well as the High Court, both of which exercised concurrent powers under Section 439, would then have to venture to the merits of the matter so as to decide whether the applicant/Appellant had shown sufficient reason or grounds for being enlarged on bail. = SUNDEEP KUMAR BAFNA ....APPELLANT vs STATE OF MAHARASHTRA & ANR. …..RESPONDENT(S) = 2014 (March. Part ) judis.nic.in/supremecourt/filename=41343

Sec.439 I.P.C. - arrest / surrender before court - once the surrender is accepted, the court has to look on the merits of granting bail ? - the appellant filed a bail application under sec.439 and also surrender petition - High court held that when the Appellant’s plea to surrender before the Court is accepted  and  he is assumed to be in its custody, the police would  be  deprived  of  getting his custody, which is not contemplated by law, and thus, the  Appellant  “is required to be arrested or otherwise he has to surrender  before  the  Court which can send him to  remand  either  to  the  police  custody  or  to  the Magisterial custody and this can only be done under Section 167 of  CrPC  by the Magistrate and that order cannot be passed at  the  High  Court  level.” - Apex court held that  the  learned Single Judge erred in law in holding that he was devoid of jurisdiction   so far as the application presented to him  by  the  Appellant  before  us  was concerned.   Conceptually, he could have declined to accept  the  prayer  to surrender to the Courts’ custody, although, we are presently  not  aware  of any reason for this option to be exercised.   Once the prayer for  surrender is accepted, the Appellant before us would come  into  the  custody  of  the Court within the contemplation of Section 439 CrPC.   The Sessions Court  as well as the High Court, both of  which  exercised  concurrent  powers  under Section 439, would then have to venture to the merits of the  matter  so  as to decide whether the applicant/Appellant had  shown  sufficient  reason  or grounds for being enlarged on bail. =

A neat  legal  nodus  of  ubiquitous  manifestation  and  gravity  has
arisen before us.   
It partakes the character of a general principle of  law
with significance sans systems and States.  The futility of the  Appellant’s
endeavours to secure anticipatory bail  having  attained  finality,  he  had
once again knocked at the  portals  of  the  High  Court  of  Judicature  at
Bombay, this time around for regular bail under Section 439 of the  Code  of
Criminal Procedure (CrPC), which was declined with the observations that  it
is the Magistrate whose jurisdiction has necessarily to be invoked  and  not
of the High Court or even  the  Sessions  Judge.     
The  legality  of  this
conclusion is the gravemen of the appeal before  us.    While  declining  to
grant anticipatory bail to the Appellant, this Court  had  extended  to  him
transient insulation from arrest for a period of four weeks  to  enable  him
to apply for regular bail,   even in  the  face  of  the  rejection  of  his
Special Leave Petition on 28.1.2014.    
This course was courted by  him,  in
the event again in vain, as the bail  application  preferred  by  him  under
Section 439 CrPC has been dismissed by  the  High  Court  in  terms  of  the
impugned Order dated 6.2.2014.   
His supplications to the Bombay High  Court
were twofold; 
that the High Court may permit the petitioner to surrender  to
its jurisdiction and 
secondly, to enlarge him on regular bail under  Section
439 of the Code, on such terms and conditions  as  may  be  deemed  fit  and
proper.
3.    In the impugned Judgment, the learned Single  Judge  has  opined  that
when the Appellant’s plea to surrender before the Court is accepted  and  he
is assumed to be in its custody, the police would  be  deprived  of  getting
his custody, which is not contemplated by law, and thus, the  Appellant  “is
required to be arrested or otherwise he has to surrender  before  the  Court
which can send him to  remand  either  to  the  police  custody  or  to  the
Magisterial custody and this can only be done under Section 167 of  CrPC  by
the Magistrate and that order cannot be passed at  the  High  Court  level.” =

It is contended that the  Magistrate  is  not
empowered to grant bail to the Appellant, since  he  can  be  punished  with
imprisonment for life, as statutorily stipulated in Section 437(1) CrPC; =
The pandect providing for bail is Chapter  XXXIII  comprises  Sections
436 to 450 of the  CrPC,  of  which  Sections  437  and  439  are  currently
critical.    Suffice  it  to  state  that  Section  438  which  deals   with
directions for grant  of  bail  to  persons  apprehending  arrest  does  not
mandate either the presence of the applicant in Court or for  his  being  in
custody.    Section 437, inter alia, provides that  if  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
if such person appears or is brought before a  Court  other  than  the  High
Court  or  Court  of  Session,  he  may  be  released  on  bail  in  certain
circumstances.=
In conclusion, therefore, we are  of  the  opinion  that  the  learned
Single Judge erred in law in holding that he was devoid of jurisdiction   so
far as the application presented to him  by  the  Appellant  before  us  was
concerned.   Conceptually, he could have declined to accept  the  prayer  to
surrender to the Courts’ custody, although, we are presently  not  aware  of
any reason for this option to be exercised.   Once the prayer for  surrender
is accepted, the Appellant before us would come  into  the  custody  of  the
Court within the contemplation of Section 439 CrPC.   The Sessions Court  as
well as the High Court, both of  which  exercised  concurrent  powers  under
Section 439, would then have to venture to the merits of the  matter  so  as
to decide whether the applicant/Appellant had  shown  sufficient  reason  or
grounds for being enlarged on bail.

The impugned Order is, accordingly, set aside.    
The  Learned  Single
Judge shall consider the Appellant’s plea for surrendering to the Court  and
dependent on that decision, the  Learned  Single  Judge  shall,  thereafter,
consider the Appellant’s plea for his being granted  bail.    
The  Appellant
shall not be arrested for a period of two weeks or till the  final  disposal
of the said application, whichever is later.   
We expect  that  the  learned
Single Judge shall remain impervious to any pressure that may be brought  to
bear upon him either from the public or  from  the  media  as  this  is  the
fundamental and onerous duty cast on every Judge.
28.   The appeal is allowed in the above terms. 
2014 (March. Part ) judis.nic.in/supremecourt/filename=41343

K.S. RADHAKRISHNAN, VIKRAMAJIT SEN
                                                      REPORTABLE


                        IN THE SUPREME COURT OF INDIA


                       CRIMINAL APPELLATE JURISDICTION


                     CRIMINAL APPEAL No.  689   OF 2014
                 [Arising out of SLP (Crl.)No.1348 of 2014]


SUNDEEP KUMAR BAFNA                                     ....APPELLANT


            vs


STATE OF MAHARASHTRA & ANR.                 …..RESPONDENT(S)








                               J U D G M E N T








VIKRAMAJIT SEN,J.



1.    Leave granted.
2.    A neat  legal  nodus  of  ubiquitous  manifestation  and  gravity  has
arisen before us.   It partakes the character of a general principle of  law
with significance sans systems and States.  The futility of the  Appellant’s
endeavours to secure anticipatory bail  having  attained  finality,  he  had
once again knocked at the  portals  of  the  High  Court  of  Judicature  at
Bombay, this time around for regular bail under Section 439 of the  Code  of
Criminal Procedure (CrPC), which was declined with the observations that  it
is the Magistrate whose jurisdiction has necessarily to be invoked  and  not
of the High Court or even  the  Sessions  Judge.     The  legality  of  this
conclusion is the gravemen of the appeal before  us.    While  declining  to
grant anticipatory bail to the Appellant, this Court  had  extended  to  him
transient insulation from arrest for a period of four weeks  to  enable  him
to apply for regular bail,   even in  the  face  of  the  rejection  of  his
Special Leave Petition on 28.1.2014.    This course was courted by  him,  in
the event again in vain, as the bail  application  preferred  by  him  under
Section 439 CrPC has been dismissed by  the  High  Court  in  terms  of  the
impugned Order dated 6.2.2014.   His supplications to the Bombay High  Court
were twofold; that the High Court may permit the petitioner to surrender  to
its jurisdiction and secondly, to enlarge him on regular bail under  Section
439 of the Code, on such terms and conditions  as  may  be  deemed  fit  and
proper.
3.    In the impugned Judgment, the learned Single  Judge  has  opined  that
when the Appellant’s plea to surrender before the Court is accepted  and  he
is assumed to be in its custody, the police would  be  deprived  of  getting
his custody, which is not contemplated by law, and thus, the  Appellant  “is
required to be arrested or otherwise he has to surrender  before  the  Court
which can send him to  remand  either  to  the  police  custody  or  to  the
Magisterial custody and this can only be done under Section 167 of  CrPC  by
the Magistrate and that order cannot be passed at  the  High  Court  level.”
Learned Senior Counsel for the Appellant have fervidly  assailed  the  legal
correctness of this opinion.   It is contended that the  Magistrate  is  not
empowered to grant bail to the Appellant, since  he  can  be  punished  with
imprisonment for life, as statutorily stipulated in Section 437(1) CrPC;  CR
No.290 of 2013 stands registered with P.S.  Mahim  for  offences  punishable
under Sections 288, 304, 308, 336, 388 read with 34  and  Section  120-B  of
IPC.   Learned Senior Counsel further contends that since the matter  stands
committed to Sessions, the Magistrate is denuded of all  powers  in  respect
of the said matter, for the reason that law envisages the  commitment  of  a
case and not of an individual accused.
4.    While accepting the Preliminary Objection, the  dialectic  articulated
in the impugned order is that law postulates that a person  seeking  regular
bail must perforce languish in  the  custody  of  the  concerned  Magistrate
under  Section  167  CrPC.  The  Petitioner  had  not   responded   to   the
notices/summons issued by the concerned Magistrate leading to  the  issuance
of non-bailable warrants against him,  and  when  even  these  steps  proved
ineffectual in bringing him before the Court, measures were  set  in  motion
for declaring him as a proclaimed offender under Section  82  CrPC.    Since
this was not the position obtaining in the case, i.e. it was assumed by  the
High Court that the Petitioner was not in custody, the application for  bail
under Section  439  of  CrPC  was  held  to  be  not  maintainable.     This
conclusion was reached even though the petitioner was present in  Court  and
had  pleaded  in  writing  that  he  be  permitted  to  surrender   to   the
jurisdiction of the High Court.   We shall abjure from narrating  in  minute
detail the factual matrix of the case as it is not essential to  do  so  for
deciding the issues that have arisen in the present Appeal.
Relevant Provisions in the CrPC Pertaining to Regular Bail:
5.    The pandect providing for bail is Chapter  XXXIII  comprises  Sections
436 to 450 of the  CrPC,  of  which  Sections  437  and  439  are  currently
critical.    Suffice  it  to  state  that  Section  438  which  deals   with
directions for grant  of  bail  to  persons  apprehending  arrest  does  not
mandate either the presence of the applicant in Court or for  his  being  in
custody.    Section 437, inter alia, provides that  if  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
if such person appears or is brought before a  Court  other  than  the  High
Court  or  Court  of  Session,  he  may  be  released  on  bail  in  certain
circumstances.
6.    For facility of reference, Sections 437 and  439,  both  covering  the
grant of regular bail in non-bailable  offences  are  reproduced  hereunder.
Section 438 has been ignored because it is the composite  provision  dealing
only with the grant of anticipatory bail.
            “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 –
             (i) such person 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;
             (ii) such person shall not be so released if such offence is  a
       cognizable offence and  he  had  been  previously  convicted  of  an
       offence punishable with death, imprisonment for life or imprisonment
       for seven years or more, or he had been previously convicted on  two
       or  more  occasions  of  a  cognizable   offence   punishable   with
       imprisonment for three years or more but not less than seven years:
             Provided that the Court may direct that a person referred to in
       clause (i) or clause (ii) be released on  bail  if  such  person  is
       under the age of sixteen years or is a woman or is sick or infirm:
             Provided further that the Court may also direct that  a  person
       referred to in clause (ii) be released on bail if  it  is  satisfied
       that it is just and proper so to do for any other special reason:
             Provided also that the mere fact that an accused person may  be
       required for being  identified  by  witnesses  during  investigation
       shall not be sufficient ground for refusing to grant bail if  he  is
       otherwise entitled to be released on bail and gives  an  undertaking
       that he shall comply with such directions as may  be  given  by  the
       Court:
             Provided also that no person shall, if the offence  alleged  to
       have been committed by him is punishable  with  death,  imprisonment
       for life, or  imprisonment for seven years or more, be  released  on
       bail  by  the  Court  under  this  sub-section  without  giving   an
       opportunity of hearing to the Public Prosecutor.
       (2)  If it appears to such officer or Court  at  any  stage  of  the
       investigation, inquiry or trial, as the case may be, that there  are
       not reasonable grounds for believing that the accused has  committed
       a non-bailable offence, but that there are  sufficient  grounds  for
       further inquiry into his guilt, the accused shall,  subject  to  the
       provisions of section 446A and pending such inquiry, be released  on
       bail, or at  the  discretion  of  such  officer  or  Court,  on  the
       execution by him of a bond without sureties for  his  appearance  as
       hereinafter provided.
       (3)  When a person accused or suspected  of  the  commission  of  an
       offence punishable with imprisonment which may extend to seven years
       or more or of an offence under Chapter VI, Chapter  XVI  or  Chapter
       XVII of the Indian Penal Code  (45  of  1860)  or  abetment  of,  or
       conspiracy or attempt to commit, any such offence,  is  released  on
       bail under sub- section (1) – the Court shall impose the  conditions
       –
             (a)  that such person  shall  attend  in  accordance  with  the
       conditions of the bond executed under this Chapter,
             (b)   that such person shall not commit an offence  similar  to
       the offence of which he is accused, or suspected,  of the commission
       of which he is suspected, and
             (c)  that such person shall not directly or indirectly make any
       inducement, threat or promise to  any  person  acquainted  with  the
       facts of the case so as to dissuade him from disclosing  such  facts
       to the Court or to any police officer or tamper with  the  evidence,
       and may also  impose,  in  the  interests  of  justice,  such  other
       conditions as it considers necessary.
       (4)   An officer or a Court releasing any person on bail under  sub-
       section (1) or sub- section (2), shall record in writing his or  its
       reasons or special reasons for so doing.
       (5)  Any Court which has  released  a  person  on  bail  under  sub-
       section (1) or sub- section (2), may, if it considers  it  necessary
       so to do, direct that such person be  arrested  and  commit  him  to
       custody.
       (6)  If, in any case triable by a Magistrate, the trial of a  person
       accused of any non-bailable offence is not concluded within a period
       of sixty days from the first date fixed for taking evidence  in  the
       case, such person shall, if he is in custody during the whole of the
       said period,  be  released  on  bail  to  the  satisfaction  of  the
       Magistrate, unless for  reasons  to  be  recorded  in  writing,  the
       Magistrate otherwise directs.
       (7)  If, at any time after the conclusion of the trial of  a  person
       accused of a non-bailable offence and before judgment is  delivered,
       the Court is of  opinion  that  there  are  reasonable  grounds  for
       believing that the accused is not guilty of  any  such  offence,  it
       shall release the accused, if he is in custody, on the execution  by
       him of a bond without sureties for his appearance to  hear  judgment
       delivered.


           439.  Special powers of High Court or Court of Session regarding
       bail –
            (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:
            Provided that the High Court or the  Court  of  Session  shall,
       before granting bail to a person who is accused of an offence  which
       is triable exclusively by the Court of Session or which, though  not
       so triable, is punishable with imprisonment for life, give notice of
       the application for bail to the Public Prosecutor unless it is,  for
       reasons to be recorded in writing, of the opinion  that  it  is  not
       practicable to give such notice.
            (2)  A High Court or Court  of  Session  may  direct  that  any
       person who has been released on bail under this Chapter be  arrested
       and commit him to custody.”


7.    Article 21  of  the  Constitution  states  that  no  person  shall  be
deprived of his life or  personal  liberty  except  according  to  procedure
established by law.   We are immediately reminded of  three  sentences  from
the Constitution  Bench  decision  in  P.S.R.  Sadhanantham  vs  Arunachalam
(1980) 3 SCC 141, which we appreciate as poetry in prose -  “Article 21,  in
its sublime brevity, guards human liberty by insisting on  the  prescription
of procedure established by law, not fiat as sine qua  non  for  deprivation
of personal freedom.  And those procedures so established must be fair,  not
fanciful, nor formal nor flimsy, as laid down in Maneka  Gandhi  case.   So,
it is axiomatic that our Constitutional  jurisprudence  mandates  the  State
not to deprive a person of his personal liberty without  adherence  to  fair
procedure laid down by law”.  Therefore, it seems to  us  that  constriction
or curtailment of personal liberty cannot  be  justified  by  a  conjectural
dialectic.  The only restriction allowed  as  a  general  principle  of  law
common to all legal systems is the period of 24  hours  post-arrest  on  the
expiry of which an accused must mandatorily be produced in a Court  so  that
his remand or bail can be judicially considered.
8.    Some poignant particulars of  Section  437  CrPC  may  be  pinpointed.
First, whilst Section 497(1) of the old Code alluded  to  an  accused  being
“brought before a Court”,  the  present  provision  postulates  the  accused
being “brought before a Court other than  the  High  Court  or  a  Court  of
Session”  in respect of the commission of  any  non-bailable  offence.    As
observed in Gurcharan  Singh  vs  State  (1978)  1  SCC  118,  there  is  no
provision in the CrPC dealing with the production of an accused  before  the
Court of Session or the High Court.  But it must also be  immediately  noted
that no provision categorically  prohibits  the  production  of  an  accused
before  either  of  these  Courts.    The  Legislature  could  have   easily
enunciated, by use  of  exclusionary  or  exclusive  terminology,  that  the
superior Courts of Sessions and High Court are bereft of  this  jurisdiction
or if they were so empowered under the Old Code now stood  denuded  thereof.
 Our understanding is in conformity with Gurcharan  Singh,  as  perforce  it
must.   The scheme of the
CrPC plainly provides that bail will not be extended to a person accused  of
the  commission  of  a  non-bailable  offence  punishable  with   death   or
imprisonment for life, unless it is apparent to such  a  Court  that  it  is
incredible or beyond the realm of  reasonable  doubt  that  the  accused  is
guilty.   The enquiry of the Magistrate placed in  this  position  would  be
akin to what is envisaged in State of Haryana vs Bhajan  Lal,  1992  (Supp)1
SCC 335, that is, the alleged complicity  of  the  accused  should,  on  the
factual matrix then presented  or  prevailing,  lead  to  the  overwhelming,
incontrovertible and clear conclusion of his innocence.   The CrPC  severely
curtails the powers of the Magistrate while leaving that  of  the  Court  of
Session and the High Court untouched and  unfettered.    It  appears  to  us
that this is the only logical  conclusion  that  can  be  arrived  at  on  a
conjoint consideration of Sections 437 and 439 of the CrPC.   Obviously,  in
order to complete the picture so far as concerns the powers and  limitations
thereto of the Court of Session and the High Court, Section 439  would  have
to be carefully considered.   And when this is done,  it  will  at  once  be
evident that the CrPC  has placed an embargo against granting relief  to  an
accused, (couched by us in the negative), if he  is  not  in  custody.    It
seems to us that any persisting ambivalence or  doubt  stands  dispelled  by
the proviso to this Section, which mandates only that the Public  Prosecutor
should be put on notice.   We have not found any provision in the CrPC    or
elsewhere, nor have any been brought to our ken,  curtailing  the  power  of
either of the superior Courts  to  entertain  and  decide  pleas  for  bail.
Furthermore, it is incongruent that in the  face  of  the  Magistrate  being
virtually disempowered to grant bail in the event of   detention  or  arrest
without warrant of any person accused of or suspected of the  commission  of
any non-bailable offence punishable by death or imprisonment  for  life,  no
Court is enabled to extend him succour.      Like the  science  of  physics,
law also abhors the existence of a vacuum, as is  adequately  adumbrated  by
the common law maxim, viz. ‘where there is  a  right  there  is  a  remedy’.
The universal right of personal liberty emblazened  by  Article  21  of  our
Constitution, being fundamental to the very  existence  of  not  only  to  a
citizen of India but to every person, cannot be trifled  with  merely  on  a
presumptive plane.   We should  also  keep  in  perspective  the  fact  that
Parliament has carried out amendments to this  pandect  comprising  Sections
437 to 439, and, therefore, predicates on the  well  established  principles
of interpretation of statutes that what is not plainly  evident  from  their
reading, was never intended to  be  incorporated  into  law.   Some  salient
features of these provisions are that whilst Section 437  contemplates  that
a person has to  be  accused  or  suspect  of  a  non-bailable  offence  and
consequently arrested or detained without warrant, Section 439 empowers  the
Session Court or High Court to grant bail if such a person  is  in  custody.
The difference of language manifests the sublime differentiation in the  two
provisions, and, therefore, there is no justification  in  giving  the  word
‘custody’ the same or closely similar  meaning  and  content  as  arrest  or
detention.   Furthermore, while Section 437 severally curtails the power  of
the Magistrate to grant bail in context of the commission  of   non-bailable
offences punishable with death or imprisonment  for  life,  the  two  higher
Courts have only the procedural requirement of giving  notice  of  the  Bail
application to the Public Prosecutor, which requirement  is  also  ignorable
if circumstances so demand.   The  regimes  regulating  the  powers  of  the
Magistrate on the one hand and the two superior  Courts  are  decidedly  and
intentionally  not  identical,  but  vitally  and  drastically   dissimilar.
Indeed, the only complicity that can be contemplated  is  the  conundrum  of
‘Committal of cases to the Court of Session’ because of  a  possible  hiatus
created by the CrPC.
Meaning of Custody:
9.    Unfortunately, the terms ‘custody’, ‘detention’ or ‘arrest’  have  not
been defined in the  CrPC,  and  we  must  resort  to  few  dictionaries  to
appreciate their contours  in  ordinary  and  legal  parlance.   The  Oxford
Dictionary   (online)   defines   custody   as   imprisonment,    detention,
confinement,  incarceration,  internment,  captivity;  remand,  duress,  and
durance.    The Cambridge Dictionary  (online)  explains  ‘custody’  as  the
state   of   being     kept in prison,     especially while waiting to    go
to court for trial.  Longman Dictionary (online) defines ‘custody’ as  ‘when
someone is kept in prison until they go to court, because the  police  think
they have committed a crime’.   Chambers Dictionary (online) clarifies  that
custody  is  ‘the  condition  of  being  held  by  the  police;  arrest   or
imprisonment; to take someone  into  custody to  arrest  them’.    Chambers’
Thesaurus  supplies  several  synonyms,  such  as  detention,   confinement,
imprisonment, captivity, arrest, formal incarceration.  The Collins  Cobuild
English Dictionary for Advance Learners states in terms of that someone  who
is in custody or has been taken into custody or has  been  arrested  and  is
being kept in prison until they get tried in a court or if someone is  being
held in a particular type of custody, they are being kept in  a  place  that
is  similar  to  a  prison.      The  Shorter  Oxford   English   Dictionary
postulates the presence  of  confinement,  imprisonment,  durance  and  this
feature is totally absent in the factual  matrix  before  us.    The  Corpus
Juris Secundum under the  topic  of  ‘Escape  &  Related  Offenses;  Rescue’
adumbrates that ‘Custody,  within  the  meaning  of  statutes  defining  the
crime, consists of the detention or restraint of a  person  against  his  or
her will, or of the exercise of control over another to  confine  the  other
person within certain  physical  limits  or  a  restriction  of  ability  or
freedom of movement.’ This is how ‘Custody’ is dealt  with  in  Black’s  Law
Dictionary, (9th ed. 2009):-
            “Custody- The care and control of  a  thing  or  person.    The
       keeping, guarding, care, watch, inspection, preservation or security
       of a thing, carrying with it the idea of the thing being within  the
       immediate personal care and control of the person to  whose  custody
       it is subjected.   Immediate charge and control, and not the  final,
       absolute control of  ownership,  implying   responsibility  for  the
       protection and preservation of the  thing  in  custody.    Also  the
       detainer of a man’s person by virtue of lawful process or authority.
            The term is very elastic and may mean  actual  imprisonment  or
       physical detention or mere power, legal or physical, of  imprisoning
       or of taking manual  possession.    Term  “custody”  within  statute
       requiring that petitioner be “in custody” to be entitled to  federal
       habeas corpus relief  does  not  necessarily  mean  actual  physical
       detention in jail or prison but rather is synonymous with  restraint
       of liberty.   U. S. ex rel. Wirtz v. Sheehan, D.C.Wis,  319  F.Supp.
       146, 147.    Accordingly, persons on probation or  released  on  own
       recognizance have been held to  be  “in  custody”  for  purposes  of
       habeas corpus proceedings.”


10.   A perusal of the dictionaries thus discloses that the concept that  is
created is the controlling  of  a  person’s  liberty  in  the  course  of  a
criminal investigation,  or  curtailing  in  a  substantial  or  significant
manner a person’s freedom of action.  Our attention has been drawn,  in  the
course of  Rejoinder arguments to the judgment of  the  Full  Bench  of  the
High Court of Madras in Roshan Beevi vs Joint  Secretary  1984(15)  ELT  289
(Mad), as also to the decision of the Court in  Directorate  of  Enforcement
vs Deepak Mahajan (1994) 3 SCC 440; in view of the composition of  both  the
Benches,  reference to the former is otiose.    Had we been called  upon  to
peruse Deepak Mahajan earlier, we may not have considered  it  necessary  to
undertake a study of several Dictionaries, since  it  is  a  convenient  and
comprehensive compendium on the meaning of arrest, detention and custody.
11.   Courts in Australia, Canada, U.K. and U.S. have  predicated  in  great
measure, their decisions on paragraph 99 from Vol.  II  Halsbury’s  Laws  of
England (4th Edition) which states that – “Arrest  consists  of  the  actual
seizure or touching of a person’s body with a view to his  detention.    The
mere pronouncing of words of arrest is not  an  arrest,  unless  the  person
sought to be arrested submits to the process and  goes  with  the  arresting
officer”. The US Supreme  Court  has  been  called  upon  to  explicate  the
concept of custody on a number  of  occasions,  where,  coincidentally,  the
plea that was proffered was the failure of  the  police  to  administer  the
Miranda caution, i.e.  of  apprising  the  detainee  of  his  Constitutional
rights.  In Miranda vs Arizona 384 US 436  (1966),  custodial  interrogation
has been said to mean “questioning initiated  by  law  enforcement  officers
after a person has been taken into custody  or  otherwise  deprived  of  his
freedom of action in any significant way”. In Minnesota  vs  Murphy  465  US
420 (1984), it was opined by the U.S. Supreme Court that  since  “no  formal
arrest or restraint on freedom of movement of  the  degree  associated  with
formal  arrest”  had  transpired,  the  Miranda  doctrine  had  not   become
operative.  In R. vs Whitfield 1969 CareswellOnt 138, the Supreme  Court  of
Canada was called upon to decide whether the police  officer,  who  directed
the accused therein to stop the car and while seizing him by the shirt  said
“you are under arrest:”, could be said to have been  “custodially  arrested”
when the accused managed to sped away.   The plurality of the Supreme  Court
declined to draw any distinction between an arrest amounting to custody  and
a mere or bare arrest and held that the accused was not  arrested  and  thus
could not  have  been  guilty  of  “escaping  from  lawful  custody”.   More
recently, the Supreme Court of Canada has clarified in R. vs  Suberu  [2009]
S.C.J.No.33 that detention transpired only upon the interaction  having  the
consequence of a significant deprivation of liberty.   Further, in  Berkemer
vs McCarty 468 U.S.  420  (1984),  a  roadside  questioning  of  a  motorist
detained pursuant to a routine traffic stop was not  seen  as  analogous  to
custodial interrogation requiring adherence to Miranda rules.
12.   It appears to us from the above analysis that custody,  detention  and
arrest are sequentially cognate concepts.   On the occurrence  of  a  crime,
the police is likely to carry  out  the  investigative  interrogation  of  a
person, in the course of  which  the  liberty  of  that  individual  is  not
impaired, suspects are then preferred by the  police  to  undergo  custodial
interrogation during which their liberty is  impeded  and  encroached  upon.
If grave suspicion against a suspect emerges, he may be  detained  in  which
event his liberty is seriously impaired.   Where  the  investigative  agency
is of the opinion that the detainee or person in custody is  guilty  of  the
commission of a crime, he is charged of  it  and  thereupon  arrested.    In
Roshan Beevi, the Full Bench of the High Court of Madras,  speaking  through
S. Ratnavel Pandian J, held that the terms ‘custody’ and  ‘arrest’  are  not
synonymous even though in every arrest there is a deprivation of liberty  is
custody but not vice versa.   This thesis is  reiterated  by  Pandian  J  in
Deepak Mahajan by deriving support from Niranjan Singh vs Prabhakar  Rajaram
Kharote  (1980) 2 SCC 559.   The following passages from Deepak Mahajan  are
worthy of extraction:-
            “48. Thus the Code gives power of arrest not only  to  a  police
      officer and a Magistrate but also under certain circumstances or given
      situations to private persons. Further, when an accused person appears
      before a Magistrate  or  surrenders  voluntarily,  the  Magistrate  is
      empowered to take that accused person into custody and deal  with  him
      according to law.  Needless to emphasize that the arrest of  a  person
      is a condition precedent for taking him into judicial custody thereof.
       To put it differently, the taking of the person into judicial custody
      is followed after the arrest of the person concerned by the Magistrate
      on appearance or surrender. It will be appropriate, at this stage,  to
      note that in every arrest, there is custody but  not  vice  versa  and
      that both the words ‘custody’ and ‘arrest’ are not  synonymous  terms.
      Though ‘custody’ may amount to an arrest in certain circumstances  but
      not under all circumstances. If these two  terms  are  interpreted  as
      synonymous, it is nothing but an ultra legalist  interpretation  which
      if under all circumstances accepted  and  adopted,  would  lead  to  a
      startling anomaly  resulting  in  serious  consequences,  vide  Roshan
      Beevi.
           49. While interpreting the expression ‘in  custody’  within  the
      meaning of Section 439 CrPC, Krishna Iyer, J. speaking for  the  Bench
      in Niranjan Singh v. Prabhakar Rajaram Kharote  observed that: (SCC p.
      563, para 9)
        “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.”  (emphasis
      added)


 If the third sentence of para 48 is discordant to Niranjan Singh, the  view
of  the  coordinate  Bench  of  earlier  vintage  must  prevail,  and   this
discipline demands and constrains us  also  to  adhere  to  Niranjan  Singh;
ergo, we reiterate that a person is  in  custody  no  sooner  he  surrenders
before the police or before the appropriate  Court.    This  enunciation  of
the law is also available in three  decisions  in  which  Arijit  Pasayat  J
spoke for the 2-Judge Benches, namely (a) Nirmal Jeet Kaur vs State of  M.P.
(2004) 7 SCC 558 and (b) Sunita Devi vs State of Bihar  (2005)  1  SCC  608,
and (c) Adri Dharan Das vs State of West Bengal, (2005) 4  SCC  303,   where
the Co-equal Bench has opined that since an accused has  to  be  present  in
Court on the moving of a bail  petition  under  Section  437,  his  physical
appearance before the Magistrate tantamounts to  surrender.    The  view  of
Niranjan Singh (see extracted para 49 infra) has been followed in  State  of
Haryana vs Dinesh Kumar (2008) 3 SCC 222.  We can only fervently  hope  that
member of Bar will desist  from  citing  several  cases  when  all  that  is
required for their purposes is to  draw  attention  to  the  precedent  that
holds the field, which in the case in hand, we reiterate is Niranjan Singh.
Rule of Precedent & Per Incuriam:
13.   The Constitution Bench in Union of India vs Raghubir Singh,  1989  (2)
SCC  754,  has come to the conclusion extracted below:
      “27.  What then should be the position in regard to the effect of  the
       law pronounced by a Division Bench in relation to a case raising the
       same point subsequently before a Division Bench of a smaller  number
       of Judges? There is no constitutional or statutory  prescription  in
       the matter, and the point is governed entirely by  the  practice  in
       India of the  courts  sanctified  by  repeated  affirmation  over  a
       century of time. It cannot be  doubted  that  in  order  to  promote
       consistency and certainty in the law laid down by a superior  Court,
       the ideal condition would be that the entire Court should sit in all
       cases to decide questions of law, and for that  reason  the  Supreme
       Court of the United States does so. But having regard to the  volume
       of work demanding the attention of the  Court,  it  has  been  found
       necessary in India as a general rule  of  practice  and  convenience
       that  the  Court  should  sit  in  Divisions,  each  Division  being
       constituted  of  Judges  whose  number  may  be  determined  by  the
       exigencies of judicial need, by the nature of the case including any
       statutory mandate relative thereto, and by such other considerations
       which  the  Chief  Justice,  in  whom  such  authority  devolves  by
       convention, may find most appropriate.  It  is  in  order  to  guard
       against the possibility of inconsistent decisions on points  of  law
       by different Division Benches that the Rule  has  been  evolved,  in
       order to promote consistency and certainty in the development of the
       law and its contemporary status, that the statement of the law by  a
       Division Bench is considered binding on a Division Bench of the same
       or lesser number of Judges. This  principle  has  been  followed  in
       India by several generations of Judges. …”

14.    This  ratio  of  Raghubir  Singh  was  applied  once  again  by   the
Constitution Bench in Chandra Prakash v. State of U.P.: AIR  2002  SC  1652.
We think it instructive to extract the paragraph 22 from Chandra Prakash  in
order to underscore  that  there  is  a  consistent  and  constant  judicial
opinion, spanning across decades, on this aspect of jurisprudence:
            “Almost similar is the view expressed by a recent judgment of  a
      five-Judge Bench of this Court in Parija’s  case  (supra).    In  that
      case, a Bench of  two learned Judges doubted the  correctness  of  the
      decision a Bench of three learned Judges, hence, directly referred the
      matter to a Bench of five learned  Judges  for  reconsideration.    In
      such a situation, the five-Judge Bench held that  judicial  discipline
      and propriety demanded that a  Bench  of  two  learned  Judges  should
      follow the decision of a Bench  of  three  learned  Judges.   On  this
      basis, the five-Judge Bench found fault with the reference made by the
      two-Judge Bench based on the doctrine of binding precedent.”

15.   It cannot  be  over-emphasised  that  the  discipline  demanded  by  a
precedent or the  disqualification  or  diminution  of  a  decision  on  the
application of the per incuriam rule is of great importance,  since  without
it, certainty of law, consistency of rulings  and  comity  of  Courts  would
become a costly casualty.   A decision or judgment can be per  incuriam  any
provision in a statute, rule or regulation, which was  not  brought  to  the
notice of the Court.   A decision or judgment can also be  per  incuriam  if
it is not possible  to  reconcile  its  ratio  with  that  of  a  previously
pronounced judgment of a Co-equal or Larger Bench; or if the decision  of  a
High Court is not in consonance with the  views  of  this  Court.   It  must
immediately be  clarified  that  the  per  incuriam  rule  is  strictly  and
correctly applicable to the ratio decidendi    and  not  to  obiter   dicta.
It  is  often  encountered  in  High  Courts  that  two  or  more   mutually
irreconcilable decisions of the Supreme Court are cited  at  the  Bar.    We
think that the inviolable recourse is to apply  the  earliest  view  as  the
succeeding ones would fall in the category of per incuriam.
Validation of Ratio in Niranjan Singh:
16.   We must now discuss in detail the decision of  a  Two-Judge  Bench  in
Rashmi Rekha Thatoi vs State of Orissa, (2012) 5 SCC 690,   for  the  reason
that in  the  impugned  Order  the  Single  Judge  of  the  High  Court  has
proclaimed, which word we used intentionally, that  Niranjan  Singh  is  per
incuriam.   The ‘chronology of cases’ mentioned in Rashmi  Rekha  elucidates
that there  is  only  one  judgment  anterior  to  Niranjan  Singh,  namely,
Balchand Jain vs State of M.P. (1976)  4  SCC  572,  which  along  with  the
Constitution  Bench  decision  in  Gurbaksh  Singh   Sibbia,   intrinsically
concerned itself only with anticipatory bail.   It is necessary  to  give  a
salutary clarion caution  to  all  Courts,  including  High  Courts,  to  be
extremely careful and circumspect in concluding a judgment  of  the  Supreme
Court to be  per incuriam.   In the present case, in the impugned Order  the
learned Single Judge appears to have  blindly  followed  the  incorrect  and
certainly misleading editorial note in the  Supreme  Court  Reports  without
taking the trouble of conscientiously apprising himself of  the  context  in
which  Rashmi Rekha  appears  to  hold  Niranjan  Singh  per  incuriam,  and
equally importantly,  to  which  previous  judgment.   An  earlier  judgment
cannot possibly be seen as per incuriam a later judgment as  the  latter  if
numerically stronger only then it would overrule the former.   Rashmi  Rekha
dealt with anticipatory bail under Section 438  and only  tangentially  with
Sections 437 and 439 of the CrPC, and while deliberations  and  observations
found in this clutch of cases may not be circumscribed by  the  term  obiter
dicta, it must concede to any judgment directly on point.   In  the  factual
matrix before us, Niranjan Singh is  the  precedent  of  relevance  and  not
Gurbaksh Singh Sibbia or any other decision where the  scope  and  sweep  of
anticipatory bail was at the fulcrum of the conundrum.
17.   Recently, in Dinesh  Kumar,  this  conundrum  came  to  be  considered
again.   This Court adhered to the Niranjan Singh dicta (as it was bound  to
do), viz. that a person can be stated to be  in  judicial  custody  when  he
surrendered before the Court and submits  to  its  directions.   We  further
regretfully observe that the impugned Judgment is repugnant to the  analysis
carried out by two coordinate Benches of the High Court  of  Bombay  itself,
which were duly cited on  behalf  of  the  Appellant.    The  first  one  is
reported as Balkrishna Dhondu Rani vs Manik Motiram Jagtap 2005 (Supp.)  Bom
C.R.(Cri) 270 which applied Niranjan Singh; the second  is  by  a  different
Single Bench, which  correctly  applied  the  first.    In  the  common  law
system, the purpose of  precedents  is  to  impart  predictability  to  law,
regrettably the judicial indiscipline displayed in  the  impugned  Judgment,
defeats it.   If the learned Single Judge  who  had  authored  the  impugned
Judgment irrepressibly held divergent opinion and found it unpalatable,  all
that he could have done was to  draft  a  reference  to  the  Hon’ble  Chief
Justice for the purpose of constituting a larger Bench; whether  or  not  to
accede to this request remains within the discretion of the  Chief  Justice.
However, in the  case  in  hand,  this  avenue  could  also  not  have  been
traversed since Niranjan Singh  binds  not  only  Co-equal  Benches  of  the
Supreme Court but certainly every Bench of any High Court  of  India.    Far
from  being  per  incuriam,  Niranjan  Singh  has  metamorphosed  into   the
structure of stare decisis, owing to it having endured over two score  years
of consideration, leading to  the position that even Larger Benches of  this
Court should hesitate to remodel its ratio.
18.   It will also  be  germane  to  briefly  cogitate  on  the  fasciculous
captioned “Section 438 of the Code of Civil Procedure,  as  amended  by  the
Code of Criminal Procedure (Amendment) Act, 2005 of the 203rd Report of  the
Law Commission.   Although, the Law Commission was  principally  focused  on
the parameters of anticipatory bail, it had  reflected  on  Niranjan  Singh,
and, thereafter, observed in paragraph 6.3.23 that “where a  person  appears
before the Court  in  compliance  with  any  Court’s  order  and  surrenders
himself to the Court’s directions or control,  he  may  be  granted  regular
bail, since he is already under restraint.   The provisions relating to  the
anticipatory bail may not be attracted in such a case”.   An  amendment  was
proposed to the provisions  vide  CrPC  (Amendment)  Act,  2005  making  the
presence of the applicant seeking anticipatory bail obligatory at  the  time
of final hearing of the application  for  enlargement  on  bail.   The  said
amendment has not been notified yet and kept  in  abeyance  because  of  two
reasons.  Firstly, the amendment led to widespread agitation by the  lawyers
fraternity since it would virtually enable the police to immediately  arrest
an accused in the event the Court declined to enlarge the accused  on  bail.
Secondly, in the perception of the Law Commission, it would defeat the  very
purpose of the anticipatory bail.  The conclusion of the Law Commission,  in
almost identical  words  to  those  extracted  above  are  that:  “when  the
applicant appears in the Court in compliance of the  Court’s  order  and  is
subjected to the Court’s directions, he may be viewed as in Court’s  custody
and  this  may  render  the  relief  of  anticipatory   bail   infructuous”.
Accordingly, the Law Commission has recommended omission of sub-section  (1-
B) of Section 438 CrPC.
19.   The Appellant had  relied  on  Niranjan  Singh  vs  Prabhakar  Rajaram
Kharote  (1980) 2 SCC 559, before the High Court as well as before  us.    A
perusal of the impugned Order discloses that the learned  Single  Judge  was
of the mistaken opinion that  Niranjan  Singh  was  per  incuriam,  possibly
because of an editorial error in the reporting  of  the  later  judgment  in
Rashmi Rekha  Thatoi vs State of Orissa (2012) 5 SCC  690.   In  the  latter
decision the curial assault was to the  refusal  to  grant  of  anticipatory
bail under Section 438(1) CrPC, yet nevertheless enabling him  to  surrender
before the Sub Divisional Magistrate and thereupon to be released  on  bail.
 In the appeal in hand this issue is  not  in  focus;   the  kernel  of  the
conundrum before us is  the  meaning  to  be  ascribed  to  the  concept  of
custody in Section 439 CrPC, and a careful scrutiny  of  Rashmi  Rekha  will
disclose that it does not even purport to or tangentially intend to  declare
Niranjan Singh as per incuriam.   Any remaining doubt would be dispelled  on
a perusal of Ranjit Singh vs State of M.P, where our esteemed Brother  Dipak
Misra  has  clarified  that  Rashmi  Rekha  concerned   itself   only   with
anticipatory bail.  The impugned Order had therefore to remain  in  complete
consonance with Niranjan Singh.    It needs to be clarified  that  paragraph
14 of  Sunita Devi vs State of Bihar (2005) 1  SCC  608,  extracts  verbatim
paragraph 7 of Niranjan Singh, without mentioning  so.   The annals  of  the
litigation in Niranjan Singh are that pursuant to a private complaint  under
Section 202 CrPC, the concerned Magistrate issued non-bailable  warrants  in
respect of the accused, and subsequently while refusing  bail  to  them  had
neglected to contemporaneously cause them to  be  taken  into  custody.   In
that interregnum or hiatus, the  accused  moved  the  Sessions  Court  which
granted them bail albeit on certain terms  which  the  High  Court  did  not
interfere  therewith.    This  Court,  speaking  through  Krishna   Iyer   J
elucidated the law in these paragraphs:
          “6. Here the respondents were accused of offences but were not  in
       custody,  argues  the  petitioner  so  no  bail,  since  this  basic
       condition of being in jail is not  fulfilled.  This  submission  has
       been rightly rejected by the courts below. We  agree  that,  in  one
       view, an outlaw cannot ask for the benefit of law and he  who  flees
       justice cannot claim justice. But here the  position  is  different.
       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 CrPC unless he is in custody.
          7. When is a person in custody, within the meaning of Section  439
       CrPC? 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 dubieties  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.
          8. 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.
          9. 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 maybe, enabled the accused persons to  circumvent  the
       principle of Section 439 CrPC. 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  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.”
                         (Emphasis added by us)

It should not need belabouring that High Courts must  be  most  careful  and
circumspect in concluding that  a  decision  of  a  superior  Court  is  per
incuriam.   And here, palpably without taking the trouble of   referring  to
and reading the precedents alluded to, casually accepting to  be  correct  a
careless and incorrect editorial note, the Single  Judge  has  done  exactly
so.  All the cases considered in Rashmi Rekha including the decision of  the
Constitution Bench in Gurbaksh Singh Sibbia vs State of Punjab (1980) 2  SCC
565, concentrated on the contours and circumference  of  anticipatory  bail,
i.e. Section 438.    We  may  reiterate  that  the  Appellant’s  prayer  for
anticipatory bail had already been declined by this Court, which is  why  he
had no alternative but to apply for regular bail.   Before  we  move  on  we
shall reproduce the following part of paragraph 19  of   Sibbia  as  it  has
topicality:-
        “19 …  Besides, if and when the occasion arises, it may be possible
        for the prosecution to claim the  benefit  of  Section  27  of  the
        Evidence Act in regard to a discovery of facts made in pursuance of
        information supplied by a person released on bail by  invoking  the
        principles stated  by  this  Court  in  State  of  U.P.  v.  Deoman
        Upadhyaya  to  the  effect  that  when  a  person  not  in  custody
        approaches a police officer investigating an offence and offers  to
        give information leading to the  discovery  of  a  fact,  having  a
        bearing on the charge  which  may  be  made  against  him,  he  may
        appropriately be deemed so have surrendered himself to the  police.
         The broad foundation of this rule is stated to be that Section  46
        of  the  Code  of  Criminal  Procedure  does  not  contemplate  any
        formality before a person can be  said  to  be  taken  in  custody:
        submission to the  custody  by  word  or  action  by  a  person  is
        sufficient.   For similar reasons, we  are  unable  to  agree  that
        anticipatory bail should be refused if a legitimate  case  for  the
        remand of the offender to the police custody under  Section  167(2)
        of the Code is made out by the investigating agency.”

20.   In this analysis, the opinion in  the  impugned  Judgment  incorrectly
concludes that the High Court is bereft or devoid of power  to  jurisdiction
upon a petition which firstly pleads surrender and,  thereafter,  prays  for
bail.   The High Court could have perfunctorily  taken  the  Appellant  into
its custody and then proceeded with the perusal of the prayer for  bail;  in
the event of its coming to the conclusion that sufficient  grounds  had  not
been disclosed for enlargement on bail, necessary  orders  for  judicial  or
police custody could  have been ordained.   A Judge is expected  to  perform
his onerous calling impervious of any public pressure that  may  be  brought
to bear on him.
The Conundrum of Cognizance, Committal & Bail
21.   We have already noted in para 8 the creation by the CrPC of  a  hiatus
between the cognizance of an offence by the Magistrate and the committal  by
him of that offence to the Court of Session.   Section 190 contemplates  the
cognizance of an offence by a  Magistrate  in  any  of  the  following  four
circumstances: (i) upon receiving a complaint  of  facts;  or  (ii)  upon  a
police report of such facts; or (iii) upon  information  received  from  any
person other than a police  officer,  or  (iv)  upon  the  Magistrate’s  own
knowledge.   Thereafter, Section 193 proscribes the Court  of  Session  from
taking cognizance of any offence,  as  a  Court  of  original  jurisdiction,
unless the case has been committed to it  by  a  Magistrate;  its  Appellate
jurisdiction is left untouched.    Chapter XVI makes it amply clear  that  a
substantial period may inevitably  intervene  between  a  Magistrate  taking
cognizance of an offence triable by Sessions and its committal to the  Court
of Session.  Section 204 casts the duty on a Magistrate  to  issue  process;
Section 205 empowers him to dispense with personal  attendance  of  accused;
Section 206 permits Special summons in cases of petty offence; Sections  207
and 208 obligate the Magistrate to furnish to the  accused,  free  of  cost,
copies  of  sundry  documents  mentioned  therein;  and,  thereafter,  under
Section 209 to commit the case to  Sessions.   What  is  to  happen  to  the
accused in this interregnum;  can  his  liberty  be  jeopardized!  The  only
permissible restriction to personal freedom, as a universal legal  norm,  is
the arrest or detention of an accused for a reasonable period of  24  hours.
 Thereafter, the accused would be  entitled  to  seek  before  a  Court  his
enlargement on bail. In connection with serious offences, Section  167  CrPC
contemplates that an accused  may  be  incarcerated,  either  in  police  or
judicial custody, for a maximum of 90 days if the Charge Sheet has not  been
filed.   An accused can and very often does remain bereft  of  his  personal
liberty for as long as  three  months  and  law  must  enable  him  to  seek
enlargement on bail in this period.  Since  severe  restrictions  have  been
placed on the powers of a Magistrate to  grant  bail,  in  the  case  of  an
offence punishable by death or for imprisonment for life, an accused  should
be in a position to move the Courts  meaningfully  empowered  to  grant  him
succour.  It is inevitable that the personal freedom of an individual  would
be curtailed even  before  he  can  invoke  the  appellate  jurisdiction  of
Sessions Judge.  The  Constitution  therefore  requires  that  a  pragmatic,
positive and facilitative interpretation be given  to  the  CrPC  especially
with regard to the exercise of its original  jurisdiction  by  the  Sessions
Court.    We are unable to locate any provision in the CrPC which  prohibits
an accused from moving the Court  of  Session  for  such  a  relief  except,
theoretically,  Section  193  which  also  only  prohibits  it  from  taking
cognizance of an  offence  as  a  Court  of  original  jurisdiction.    This
embargo does not prohibit the Court of  Session  from  adjudicating  upon  a
plea for bail.  It appears to us that till the  committal  of  case  to  the
Court of Session, Section 439 can be invoked for  the  purpose  of  pleading
for bail.   If administrative difficulties are encountered, such  as,  where
there are several  Additional  Session  Judges,  they  can  be  overcome  by
enabling the accused to move the Sessions Judge, or  by  further  empowering
the Additional Sessions Judge hearing other Bail Applications  whether  post
committal or as the Appellate Court, to also entertain Bail Applications  at
the pre-committal stage.   Since the Magistrate is  completely  barred  from
granting bail to a person accused even of an offence punishable by death  or
imprisonment for life, a superior Court such as  Court  of  Session,  should
not be incapacitated from considering a bail application especially  keeping
in perspective that its powers are comparatively  unfettered  under  Section
439 of the CrPC.
22.   In the case in hand, we need not dwell further on this question  since
the Appellant  has  filed  an  application  praying,  firstly,  that  he  be
permitted to surrender to the High Court and secondly, for his  plea  to  be
considered for grant of bail by the High Court.   We say this because  there
are no provisions in the CrPC contemplating the committal of a case  to  the
High Court, thereby logically leaving its powers untrammelled.    There  are
no restrictions on the High Court  to  entertain  an  application  for  bail
provided always the accused is in custody,  and  this  position  obtains  as
soon as the accused actually surrenders himself to the Court.   Reliance  on
R  vs  Evans,  (2012)  1  WLR  1192,  by  learned  Senior  Counsel  for  the
respondents before us is misplaced, since on its careful reading, the  facts
are totally distinguishable inasmuch as the accused  in  that  case  had  so
engineered events as not to be available in persona  in  the  Court  at  the
time of the consideration of his application for  surrender.      The  Court
of Appeal observed that they “do not  agree  that  reporting  to  the  usher
amounts to surrender”. The Court in fact supported the view  that  surrender
may also be accomplished by the  commencement  of  any  hearing  before  the
Judge, however brief, where the accused person is  formally  identified  and
plainly would overtly have subjected himself to the control  of  the  Court.
Incontrovertibly,  at  the  material  time  the  Appellant  was  corporeally
present in the Bombay High Court making Evans applicable to the case of  the
Appellant rather than the case of the respondent.    A  further  singularity
of the present case is that  the  offence  has  already  been  committed  to
Sessions, albeit, the accused/Appellant could not have been  brought  before
the Magistrate.   It is beyond cavil “that a Court takes  cognizance  of  an
offence and not an offender” as  observed  in  Dilawar  Singh  vs  Parvinder
Singh, (2005) 12 SCC 709,  in which Raghubans Dubey vs State of  Bihar,  AIR
1967 SC 1167, was applied.    Therefore, the High Court  was  not  justified
in directing the Appellant to appear before the Magistrate.
23.   On behalf of the State, the submission is that the prosecution  should
be afforded a free  and  fair  opportunity  of  subjecting  the  accused  to
custody for interrogation as provided under Section 167 CrPC.    This  power
rests with the Magistrate and not with the High Court, which  is  the  Court
of Revision and Appeal; therefore, the High Court  under  Section  482  CrPC
can only correct or rectify  an  order  passed  without  jurisdiction  by  a
subordinate Court.   Learned State counsel submits that the  High  Court  in
exercise of powers under Section 482 can convert the nature of custody  from
police custody to judicial custody and vice versa, but cannot pass an  Order
of first remanding to custody.   Therefore, the  only  avenue  open  to  the
accused is to appear before the Magistrate who is  empowered  under  Section
167 CrPC.   Thereupon, the  Magistrate  can  order  for  police  custody  or
judicial custody or enlarge him on bail.   On behalf of  the  State,  it  is
contended that if accused persons are permitted to  surrender  to  the  High
Court,  it  is  capable  of  having,  if  not  a  disastrous,  certainly   a
deleterious effect on investigations and shall open up the flood  gates  for
accused persons to make strategies  by  keeping  themselves  away  from  the
investigating agencies for months on end.   The  argument    continues  that
in this manner absconding accused in several sensitive cases, affecting  the
security of the nation or the economy of the country, would  take  advantage
of such an interpretation of law and get  away  from  the  clutches  of  the
investigating officer.   We are not impressed by the  arguments  articulated
by learned Senior Counsel for the Complainant or  informant  because  it  is
axiomatic that any infraction or inroad to the freedom of an  individual  is
possible only by some clear unequivocal  and unambiguous procedure known  to
law.
Role of Public Prosecutor and Private Counsel in Prosecution
24.   The concern of the Three Judge Bench in Thakur Ram vs State  of  Bihar
AIR 1966 SC 911,  principally was whether the case before them  should  have
been committed to Sessions, as also whether this plea could be  countenanced
at the stage when only the Judgment was awaited and  any  such  interference
would effectuate subjecting the accused to face  trial  virtually  de  novo.
The observations that where “a case has  proceeded  on  a  police  report  a
private party has really no locus standi, since the aggrieved party  is  the
State”, are strictly senso obiter dicta but it did  presage  the  view  that
was to be taken by this Court later.   In Bhagwant Singh vs Commissioner  of
Police, (1985) 2 SCC 537, another Three Judge Bench formulated the  question
which required its answer that “whether in a case  where  First  Information
Report is lodged and after completion  of  investigation  initiated  on  the
basis of the First Information Report, the police submits a report  that  no
offence appears to have  been  committed,  the  Magistrate  can  accept  the
report  and  drop  the  proceeding  without  issuing  notice  to  the  first
informant or to the injured or in case the incident has resulted  in  death,
to the relatives of the deceased”.  Sections 154, 156, 157, 173 and  190  of
the CrPC were duly considered threadbare, before opining thus:-
           “4. ….when, on a consideration of the report made by the officer-
           in-charge of  a  police  station  under  sub-section  (2)(i)  of
           Section 173, the Magistrate is not inclined to  take  cognizance
           of the offence and issue process, the informant must be given an
           opportunity of being heard so that he can make  his  submissions
           to persuade the Magistrate to take cognizance of the offence and
           issue process…..


           xxxxxxxxxx


           “5. The position may however, be  a  little  different  when  we
           consider the question whether the injured person or  a  relative
           of the deceased, who is not the informant, is entitled to notice
           when the report comes up for consideration  by  the  Magistrate.
           We cannot spell out either from the provisions of  the  Code  of
           Criminal Procedure, 1973  or  from  the  principles  of  natural
           justice, any obligation on the Magistrate to issue notice to the
           injured person or to a relative of the  deceased  for  providing
           such  person  an  opportunity  to  be  heard  at  the  time   of
           consideration of the report, unless such person is the informant
           who has lodged the First Information Report.  But even  if  such
           person is not entitled to notice from  the  Magistrate,  he  can
           appear before the Magistrate and make his submissions  when  the
           report is considered  by  the  Magistrate  for  the  purpose  of
           deciding what action he should take on the report……”

Thereafter, in Shiv Kumar vs Hukam Chand (1999)  7  SCC  467,  the  question
that was posed before another Three Judge Bench  was  whether  an  aggrieved
has a right to engage its own counsel to  conduct  the  prosecution  despite
the presence of the Public Prosecutor.   This  Court  duly  noted  that  the
role of the Public Prosecutor was upholding the law and putting  together  a
sound  prosecution;  and  that  the  presence  of  a  private  lawyer  would
inexorably undermine  the  fairness  and  impartiality  which  must  be  the
hallmark, attribute and distinction of every proper  prosecution.   In  that
case the advocate appointed by the aggrieved party ventured to  conduct  the
cross-examination of the witness which was allowed by the  Trial  Court  but
was reversed in Revision by the High Court, and the  High  Court   permitted
only the submission of Written  Argument  after  the  closure  of  evidence.
Upholding the view of the High Court, this Court went  on  to  observe  that
before the Magistrate any person (except a police officer below the rank  of
Inspector)  could  conduct  the  prosecution,  but  that  this   laxity   is
impermissible in Sessions by virtue  of  Section  225  of  the  CrPC,  which
pointedly states that  the  prosecution  shall  be  conducted  by  a  Public
Prosecutor.  We, respectfully, agree with the observations that – “A  Public
Prosecutor is not expected to show  a  thirst  to  reach  the  case  in  the
conviction of the accused somehow or the  other  irrespective  of  the  true
facts involved in the case.  The expected attitude of the Public  Prosecutor
while conducting prosecution must be couched in fairness  not  only  to  the
Court and to the investigating agencies but to the accused  as  well.   ……..
A private counsel, if allowed a  free  hand  to  conduct  prosecution  would
focus on bringing the case to conviction even if it is not a fit case to  be
so convicted.  That is the reason why Parliament applied  a  bridle  on  him
and subjected his role strictly to the  instructions  given  by  the  Public
Prosecutor.”   In  J.K.  International  vs  State  (2001)  3  SCC  462,  the
Appellant had filed a complaint alleging offences under  Sections  420,  406
and 120-B IPC in respect of which  a  Charge  Sheet  was  duly  filed.   The
Appellant preferred a petition in the High Court for  quashing  the  FIR  in
which proceeding the complainant’s request for being heard was  rejected  by
the High Court.  Thakur Ram and Bhagwant Singh were cited and analysed.   It
was reiterated by this Court that it is the Public Prosecutor who is in  the
management of the prosecution the Court should   look  askance  at  frequent
interjection and  interference  by  a  private  person.    However,  if  the
proceedings are likely to be quashed, then the complainant should  be  heard
at that stage, rather than compelling him to assail the quashment by  taking
recourse to an appeal.  Sections 225, 301 and  302  were  also  adverted  to
and, thereafter, it was opined that  a  private  person  is  not  altogether
eclipsed from the scenario, as he remains a person who  will  be  prejudiced
by an order culminating in the dismissal of  the  prosecution.    The  Three
Judge Bench observed that upon the  Magistrate  becoming  prescient  that  a
prosecution is likely to end in its  dismissal,  it  would  be  salutary  to
allow a hearing to the Complainant at the earliest; and, in the  case  of  a
Sessions trial,  by permitting the filing of Written Arguments.
25.   The upshot of this analysis is that no vested right is  granted  to  a
complainant  or  informant  or  aggrieved  party  to  directly   conduct   a
prosecution.  So far as the Magistrate is  concerned,  comparative  latitude
is given  to  him  but  he  must  always  bear  in  mind  that    while  the
prosecution must remain being robust  and  comprehensive  and  effective  it
should not abandon the need to be free, fair and diligent.  So  far  as  the
Sessions Court is concerned, it is the Public Prosecutor  who  must  at  all
times remain in control of the prosecution and a counsel of a private  party
can only assist the Public Prosecutor  in  discharging  its  responsibility.
The complainant or informant or aggrieved party may, however, be heard at  a
crucial and critical juncture of the Trial so  that  his  interests  in  the
prosecution are not  prejudiced  or  jeopardized.    It  seems  to  us  that
constant or even frequent interference in  the  prosecution  should  not  be
encouraged as it will have a deleterious impact  on  its  impartiality.   If
the Magistrate or Sessions Judge harbours the opinion that  the  prosecution
is likely to fail, prudence would prompt that the complainant  or  informant
or aggrieved party be given an informal hearing.  Reverting to the  case  in
hand, we are of the opinion that the complainant or informant  or  aggrieved
party who is himself an  accomplished  criminal  lawyer  and  who  has  been
represented before us by the erudite Senior Counsel, was  not  possessed  of
any vested right of being heard as it is manifestly evident that  the  Court
has not formed any opinion adverse to the prosecution. Whether  the  Accused
is to be granted bail is a matter which can  adequately  be  argued  by  the
State Counsel.  We have, however,  granted  a  full  hearing  to  Mr.  Gopal
Subramanium, Senior Advocate and have perused detailed  Written  Submissions
since we are alive to impact that our opinion would have on a  multitude  of
criminal trials.
26.   In conclusion, therefore, we are  of  the  opinion  that  the  learned
Single Judge erred in law in holding that he was devoid of jurisdiction   so
far as the application presented to him  by  the  Appellant  before  us  was
concerned.   Conceptually, he could have declined to accept  the  prayer  to
surrender to the Courts’ custody, although, we are presently  not  aware  of
any reason for this option to be exercised.   Once the prayer for  surrender
is accepted, the Appellant before us would come  into  the  custody  of  the
Court within the contemplation of Section 439 CrPC.   The Sessions Court  as
well as the High Court, both of  which  exercised  concurrent  powers  under
Section 439, would then have to venture to the merits of the  matter  so  as
to decide whether the applicant/Appellant had  shown  sufficient  reason  or
grounds for being enlarged on bail.
27.   The impugned Order is, accordingly, set aside.    The  Learned  Single
Judge shall consider the Appellant’s plea for surrendering to the Court  and
dependent on that decision, the  Learned  Single  Judge  shall,  thereafter,
consider the Appellant’s plea for his being granted  bail.    The  Appellant
shall not be arrested for a period of two weeks or till the  final  disposal
of the said application, whichever is later.   We expect  that  the  learned
Single Judge shall remain impervious to any pressure that may be brought  to
bear upon him either from the public or  from  the  media  as  this  is  the
fundamental and onerous duty cast on every Judge.
28.   The appeal is allowed in the above terms.




      .............................................J.
                                                [K.S.RADHAKRISHNAN]






      ............................................J.
                                                 [VIKRAMAJIT SEN]
New Delhi;
March 27,  2014.
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