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TMI Blog2004 (12) TMI 727X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wakarma and then all of them looted the articles worth Rs. 10,000/- from his shop which included watches, radio, loudspeakers etc. 4. On the basis of the said complaint of the informant, FIR was lodged on 15.2.2002 which was registered as Sirdala P.S. Case No. 15/2002 under Sections 384/376/511 read with Section 34 of the Indian Penal Code 1860 (in short the IPC). It appears that on the same day, an FIR was lodged by Anuj Kumar alleging commission of offences punishable under Sections 341/323 read with Section 34 IPC against the informant's brother Suresh Vishwakarma and Chhotey Lal Pandit. The respondent No. 2 filed an application for protection in terms of Section 438 of the Code before the Patna High Court and the same was numbered as Criminal Misc. 14464 of 2003. By the impugned Order dated 4.7.2003 the protection was granted, inter-alia, on the following terms: Considering all the facts and circumstances of the case the prayer for anticipatory bail is allowed. In the event of arrest/surrender Petitioner Anuj Kumar shall be enlarged on bail on furnishing bail bond of Rs. 10,000/- with two sureties of the like amount each to the satisfaction of the Chief Judicial Magistrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oment of arrest. (See Gur Baksh Singh v. State of Punjab 1980 CriLJ 1125. 9. In Salauddin Abdulsamad Shaikh v. State of Maharashtra 1996 CriLJ 1368 , it was observed as follows: ''Anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the regular court, which is to try the offender, is sought to be bypassed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry directed the petitioner to move the regular court for bail. That is the correct procedure to follow because it must be realised that when the Court of Sessions or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it, is not informed about the nature of evidence against the alleged offender. It is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the court granted anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Section 439 of the Code cannot be said to have been rendered totally inoperative by the said observation. 14. 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 and Ors. 1980 CriLJ 426 , there cannot be any doubt that unless a person is in custody, an application for bail under Section 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. 15. The crucial question is when a person is in custody, within the meaning of Section 439 of the Code? 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 to an officer with coercive power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by a litigant to obtain an order of the Court directing the relief sought. 19. In Salauddin's case (supra) also this Court observed that the regular Court has to be moved for bail. Obviously, an application under Section 439 of the Code must be in a manner in accordance with law and accused seeking remedy under Section 439 must ensure that it would be lawful for the Court to deal with the application. Unless the applicant is in custody his making application only under Section 439 of the Code will not confer jurisdiction on the Court to which the application is made. The view regarding extension of time to move the higher Court as culled out from the decision in K.L. Verma's case (supra) shall have to be treated as having been rendered per incuriam, as no reference was made to the prescription in Section 439 requiring the accused to be in custody. In State through S.P. New Delhi v. Ratan Lal Arora 2004 CriLJ 2105 , it was held that where in a case the decision has been rendered without reference to statutory bars, the same cannot have any precedent value and shall have to be treated as having been rendered per incuriam. The present case stands at par, any precedent value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merits of the case. 24. Respondent No. 2 would surrender to custody as required in law so that his application under Section 439 of the Code can be taken for disposal. 25. Before saying omega, a few factors need to be noted. 26. From the petition filed in this Court and the counter affidavit filed by Respondent No. 2 some baffling features are noticed. Both the appellant and respondent No. 2 have referred to the supervision notes of the supervisory police officers. When asked as to how they could know about contends of supervision notes, evasive replies were given. Many instances have come in light when reference to the supervision notes have been made by the accused persons while seeking bail and also during trial. 27. Sections 207 and 208 of the Code deal with documents which are commonly known as police papers, which are to be supplied to the accused. The said sections read as follows: Section 207 Supply to the accused of copy of police report and other documents: In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:- (i) the police report; (ii) the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 208 are supplied to make the accused aware of the materials which are sought to be utilized against him. The object is to enable the accused to defend himself properly. The idea behind the supply of copies is to put him on notice of what he has to meet at the trial. The effect of non-supply of copies has been considered by this Court in Noor Khan v. State of Rajasthan 1964 CriLJ 167 and Shakila Abdul Gafar Khan (Smt.) v. Vasant Raghunath Dhoble and Anr. 2003 CriLJ 4548. It was held that non-supply is not necessarily prejudicial to the accused. The Court has to give a definite finding about the prejudice or otherwise. The supervision notes cannot be utilized by the prosecution as a piece of material or evidence against the accused. At the same time the accused cannot make any reference to them for any purpose. If any reference is made before any court to the supervision notes, as has noted above they are not to be taken note of by the concerned court. As many instances have come to light when the parties, as in the present case, make reference to the supervision notes, the inevitable conclusion is that they have unauthorized access to the official records. We, therefore, direct t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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