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2004 (12) TMI 727 - SUPREME COURTAnticipatory bail - Seeking bail application in terms of Section 439 of the CrPC - Commission of offences punishable under Sections 341/323 read with Section 34 IPC - HELD THAT:- In view of the clear language of Section 439 and in view of the decision of this Court in Niranjan Singh and Anr. v. Prabhakar Rajaram Kharote [1980 (3) TMI 258 - SUPREME COURT], there cannot be any doubt that unless a person is in custody, an application for bail u/s 439 of the Code would not be maintainable. The question when a person can be said to be in custody within the meaning of Section 439 of the Code came up for consideration before this Court in the aforesaid decision. Since the expression "custody" though used in various provisions of the Code, including Section 439, has not been defined in the Code, it has to be understood in setting in which it is used and the provisions contained in Section 437 which relates to jurisdiction of the Magistrate to release an accused on bail under certain circumstances which can be characterized as "in custody" in a generic sense. The expression "custody" as used in Section 439, must be taken to be a compendious expression referring to the events on the happening of which Magistrate can entertain a bail petition of an accused. Section 437 envisages, inter alia, that the Magistrate may release an accused on bail, if such accused appears before the Magistrate. There cannot be any doubt that such appearance before the Magistrate must be physical appearance and the consequential surrender to the jurisdiction of the Court of the Magistrate. For making an application u/s 439 the fundamental requirement is that the accused should be in custody. As observed in Salauddin's case [1995 (12) TMI 416 - SUPREME COURT] the protection in terms of Section 433 is for a limited duration during which the regular Court has to be moved for bail. Obviously, such bail is bail in terms of Section 439 of the Code, mandating the applicant to be in custody. Otherwise, the distinction between orders under Sections 438 and 439 shall be rendered meaningless and redundant. Respondent No. 2 would surrender to custody as required in law so that his application u/s 439 of the Code can be taken for disposal. The appeal is allowed to the aforesaid extent.
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