B.L.Yadav - (1.) THIS is an application under section 439 of the Code of Criminal Procedure, 1973 on behalf of Ram Kishan Misra and the prayer has been made that he may be permitted to surrender before this Court and his bail application may be considered on merits.
(2.) IN accordance with the prosecution case the applicant is sought to be prosecuted in Crime No. 458 of 1985, Police Station Kotwali, district Farrukhabad for an offence under section 302 IPC. The applicant has neither surrendered before the Magistrate nor before the Sessions Judge. He has made this application that he may be permitted to surrender before this Court and his bail application may be considered on merits. I have heard Sri N. C. Upadhaya, the learned Senior Advocate, for the applicant and Sri S. N. Singh, the learned Counsel for the State. It has been urged by the learned counsel for the applicant that the applicant has not surrendered so far and wants to surrender before this Court and his bail application may be considered directly by this Court without any application having been filed either before the Magistrate or before the Sessions Judge and on merits he urged that the applicant is entitled to bail. In support of his submissions ' he placed reliance on Parmjit Singh v. State of U. P., 1971 AWR 701, Onkar Nath Agarwal v. Stale, 1976 AWC 81 and Niranjan Singh v. Prabhakar Rajaram Kharote, AIR 1980 SC 785.
(3.) I have considered the arguments advanced on behalf of the parties. In this case the present application has been moved before this Court without any such application having been moved either before the Magistrate or before the Sessions Court. The applicant has also not surrendered either before the Magistrate or before the Sessions Court, but he wants to surrender before this Court. The power of this Court for granting bail has been provided under section 439 CrPC 1973. It is better to set out the statutory provision of section 439 (1) CrPC, 1973 so far it is relevant for the present case :- " 439. Special powers of High Court or Court of Sessions regarding bail : - (1) A High Court or Court of Sessions 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." A bare perusal of the aforesaid provision makes it clear that for a bail application being considered by this Court it is necessary that a person must be an accused op an offence and further he must be in custody. The 'custody' in connection with of leccused when he has been involved in some criminal case, obviously means nothings than having surrendered and having been sent to jail or having been remanden jail by the Court. In other words it means that he must be under the superg vision of either the police or the jail authorities. The word 'custody' according to Bouvier's Law Dictionary denotes (on page 741) "'the detainer of a person by virtue of a lawful authority......Custody has been held to mean nothing less than actual imprisonment.";