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. 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.
(3.) 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:;