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TMI Blog2020 (1) TMI 1534X X X X Extracts X X X X X X X X Extracts X X X X ..... o custody or unless he is first shown to be under judicial custody. Inasmuch as it is an undisputed case between the parties that the applicant was in actual judicial custody on 24.09.2019 when the interim bail-order was passed by this Court, it can never be said that the applicant has been released on bail without having been first taken into custody. In all fairness, that is not even the objection of the informant or the State. This bail application when filed did not suffer from any defect of form or substance. The bail application, filed by the applicant under section 439 of the Cr.P.C., 1973, was wholly maintainable. On the date of filing the bail application, the applicant was in custody and he was released by this Court under specific direction contained in the order dated 24.09.2019. Since then, the law had clearly taken control over his person by making him bound to the terms and conditions of the order whereon he was permitted to be released from the jail premises i.e. subject to his furnishing adequate surety and bail bond. In the instant case, it must be noted, there was no anticipatory bail claimed or granted. The interim-bail granted to the applicant was neither ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the informant - Naresh @ Titu, the applicant and five others, namely, Anand, Kuldeep Tyagi, Nitin, Pankaj and Pradeep @ Bhuru were accused of offence of attempt to commit murder. Later, during investigation, names of certain other accused persons had also surfaced. Briefly, the allegation is that the applicant and the co-accused assaulted the deceased Satish Tyagi with 'lathi danda', rod and knife, wherein he received fatal injuries, to which he succumbed at the hospital. However, no specific role has been assigned to the applicant. It is also a fact that a cross-version of the incident does exist though the accusations made therein are lesser/lighter. 6. In any case, the the applicant surrendered on 25.05.2018 and remained in remand since then. Upon filing of the present bail application, vide order dated 24.09.2019, the applicant was enlarged on interim-bail and the matter was directed to be listed on 04.11.2019. Learned counsel for the parties are in agreement that on account of lawyers of this Court having abstained from work under some resolution of the High Court Bar Association, no order came to be passed on 04.11.201. Thus, the final bail matter remained pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC 608. 10. Sri Ankit Shrivastav, learned AGA has also referred to the decision of the Supreme Court in Niranjan Singh Another Vs. Prabhakar Rajaram Kharote Others, (1980) 2 SCC 559, to bring on record the correct position in law, in this regard. 11. Learned counsel for the applicant would also refer to a decision of a Division Bench of this Court in Haji Peer Bux Vs State of Uttar Pradesh, 1993 Cr.L.J. 3574, wherein the decision of the Supreme Court in Niranjan Singh Another Vs. Prabhakar Rajaram Kharote Others (supra) had been followed. 12. Having heard learned counsel for the parties and having perused the record, in the first place, there can be no dispute to the fact that the present application when filed did not suffer from any defect of Section 439(1) Cr.P.C., inasmuch as, the applicant was in actual physical custody of law, at that time. Upon the order directing his release on interim bail by this Court vide order dated 24.09.2019, he was first released from the prison premises, under orders of this Court after fulfilling the directions issued by this Court, in that order. He also claims to have continuously fulfilled those directions since then. 13. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xercised through the conditions of the bond secured from him. The literal meaning of the word bail is surety. In Halsbury s Laws of England, the following observation succinctly brings out the effect of bail: The effect of granting bail is not to set the defendant (accused) at liberty but to release him from the custody of law and to entrust him to the custody of his sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of law and he will then be imprisoned. (emphasis supplied) 17. As to the status of the accused person upon being enlarged on bail, the Supreme Court in Niranjan Singh Another Vs. Prabhakar Rajaram Kharote Others (supra), in paragraph nos. 7, 8 9, had observed as under:- 7. 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 submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 overselves 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 supplied) 18. In that case, the accused persons had not surrendered, initially, before applying for bail before the Court of Sessions, but that 'irregularity' on the part of the Sessions Court (in still entertaining the bail application) though not approved, was found to have been made up by later surrender made by the accused persons, before their bail application/s came to be considered and allowed by the court of sessions. That view has been followed by the Divison Bench of this Court in Haji Peer Bux Vs State of Uttar Pradesh (supra). 19. In so far as the decision of the Supreme Court in Nirmal Jeet Kaur Vs State of M.P. Another (supra) is concerned, in that case the accused had been earlier granted anticipatory bail by the High Court. However, the regular bail applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m bail granted to the applicant was made time bound by 45 days, it is true that the same cannot ordinarily be treated to have been extended in absence of any specific order, however, it is also a fact that there is no order on the order sheet to cancel or curtail the interim bail or to decide the bail application finally on 04.11.2019. 23. First, undisputedly, the lawyers' of the Court had abstained from work on that date. Thus, it is difficult to prejudice the rights of the applicant solely on account of the conduct of the general body of lawyers who may have prevented hearing in the proceedings on 04.11.2019. Then it is also a fact that on the subsequent dates, the matter could not be heard on account of the adjournment sought on behalf of the informant. 24. Second, it is not possible to accept the same as the interim bail itself was granted in the present i.e. the regular bail application. The order dated 24.09.2019 was to allow the applicant to be released from jail so as to retain control over him, by releasing him against bail bonds and sureties. The proceeding or the bail application itself did not get decided or disposed by the order dated 24.09.2019. Rather it re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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