Sujit Barman, J. - (1.) Petitioners are apprehending arrest on an accusation of having committed some non-bailable offences under Sections 498A/307/323 Indian Penal Code in connection with Nanoor P.S. Case No. 44/99. Petitioners obtained following order under Section 438 Criminal Procedure Code from a Division Bench of this Court on 16.9.99:- "This is an application under Section 438 of the Code of Criminal Procedure for anticipatory bail by the petitioners who apprehend that they may be arrested in connection with Nanoor P.S. Case No. 44/99 dated 10.8.99 under Section 498A/307/323 of the Indian Penal Code. Having heard the learned Advocate for the Petitioner(s) as well as the learned Advocate for the State and on perusal of the case diary, we pass the following order : In the event of the petitioner(s) being arrested in connection with the aforesaid case they will be released on bail subject to the following conditions : (i) that the petitioner(s) shall make themselves available for interrogation by a police officer as and when required. (ii) that the petitioner(s) shall not directly or indirectly make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer. (iii) that the petitioner No. 1 Patai sk., shall meet the I.O. of the concerned police station once a week. This order of anticipatory bail would remain operative for a period of 3(three) weeks from today subject to decision of the Supreme, Court passed in the case of K.L. Verma v. State and another, S.L.P. (cru.) Nos. 2378 and 3278A of 1996. If any application for bail is hereafter made by the petitioner(s) before an appropriate court under Sections 437/439 Criminal Procedure Code the same shall be disposed of by such court in accordance with law."
(2.) Soon after that petitioners surrendered before S.D.J.M. Bolpur on 1.10.99 with a prayer for bail. S.D.J.M. by his order dated 1.10.99 rejected the said prayer for bail. They were, however, not taken into custody and were given 15 days time to obtain necessary order of bail from the "upper forum." Operative part of the said order reads as under:- "....In such view of the matter, the prayer for regular bail of the accused is rejected. They are however not taken into custody in the light of the decision reported in 1997 Cal. Law Reporter (Cal.) 346. The accused are given 15 days time to obtain necessary order of bail from the upper forum." Said 15 days' time was further extended upto 4.12.99 on a prayer of the petitioners. In these circumstances, petitioners have filed the instant application being C.R.M. 4276/99 for regular bail under Section 439 Criminal Procedure Code in this Court. None of the petitioners are in custody as recorded by the S.D.J.M. in his aforesaid order dated 16.9.99. Now the question we are called upon to decide is whether an application for regular bail under Section 439 Criminal Procedure Code is maintainable at instance of a person who is not in custody?
(3.) Petitioners have approached this Court in this application under Section 439 Criminal Procedure Code for regular bail though they are not in custody. This is an application under Section 439 Criminal Procedure Code.;