JUDGEMENT
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: