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TMI Blog2021 (7) TMI 1467X X X X Extracts X X X X X X X X Extracts X X X X ..... he custody by remaining physically present and filing a memo with regard to surrender, his presence through V.C. from a remote location, but it is submitted by the learned counsel for the petitioner that the case being taken up through video conferencing, the appearance of the accused through video conferencing may be considered as constructive custody of this Court under Section 439 of Cr.P.C. and his prayer for bail may be considered. Conclusion - The requirement of physical custody for bail applications under Section 439 is reaffirmed, emphasizing the need for physical presence and submission to the court's jurisdiction. The BLAPL stands dismissed being not maintainable. - JUSTICE S. PUJAHARI ORDER 1. This matter is taken up by vid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain necessary orders. The criminal appeal stands disposed of. Pending application, if any, stands disposed of. 5. Though the N.B.W.(A) was issued against the petitioner by the Court to secure his attendance, he without remaining physically present in the Court in seisin over the matter moved an application under Section 437 of Cr.P.C. for bail. The same was, however, refused. 6. The petitioner, however, has moved this Court thereafter for his release on bail and has invoked the jurisdiction of this Court without surrendering to the custody. The learned counsel for the petitioner submits that the petitioner being present in a remote location through video conferencing and surrendering to this Court through video conferencing, this petition i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich reads as thus:- 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) Xxxxx xxxxxx xxxxxxx Xxxx xxxxxx xxxxxx Xxxxx xxxxxx xxxxxx (1-A) xxxxxx xxxxxx xxxxxx. (2) xxxxxx xxxxxx xxxxxx 10. Custody has been defined by the Apex Court in the case of Niranjan Singh and another vrs. Prabhakar Rajaram Kharote and others, reported in AIR 1980 S.C. 785 for consideration of the prayer for bail under Section 437 of Cr.P.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 may be, enabled the accused persons to circumvent the principle of S. 439 Cr.P.C. We might have taken a serious view of such a course, indifferent to mandatory provisions, by the subordinate magistracy but for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive custody of this Court under Section 439 of Cr.P.C. and his prayer for bail may be considered. This Court is unable to accept such submission, as the petitioner cannot be said to be in custody in terms of the law laid down by the Apex Court in the case of Niranjan Singh (supra), which is sine-qua-non for consideration of the prayer under Section 439 of Cr.P.C. and, as such, this petition for release of the petitioner on bail is not maintainable. 12. Accordingly, the BLAPL stands dismissed being not maintainable. 13. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court s website, at par with certified copy, subject to att ..... X X X X Extracts X X X X X X X X Extracts X X X X
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