- (1.) Re : An appln. u/s 439 Cr. P.C. filed on 24.3.05 in connection with Nandigram P.S. Case No. 57 of 1994 under section 323/436/34 IPC.
(2.) This is an application for bail under section 439 Cr. PC. FIR was lodged under section 323/436/34 IPC. On completion of investigation, a final report recommending discharge of the accused persons was submitted by the investigating agency. The learned Magistrate refused to accept such final report and on the basis of a protest petition filed by the complainant, took cognizance of the offence and issued process against the accused persons. The FIR which was initially lodged, was treated as a complaint. The learned Magistrate examined the complainant and his witnesses and took cognizance of the offence. The petitioners prayed for anticipatory bail before the learned Sessions Judge on 3.5.1994 and the said application was allowed and anticipatory bail was granted on 15.6.1994 in their favour. The final report as aforesaid was submitted thereafter. The petitioners surrendered before the learned Magistrate on 9.12.2004 and prayed for regular bail which was rejected by the learned Magistrate and the petitioners were directed to bring bail order from the superior Court. Challenging such order, an application was filed before the learned Sessions Judge under section 439 Cr. PC. By the impugned order dated 15.3.2005, the learned Sessions Judge rejected such prayer for bail keeping in view the judgement of the Hon'ble Apex Court reported in AIR 2005 SC 498, Sunita Devi vs. State of Bihar in which it was held by the Hon'ble Supreme Court that an application under section 439 Cr. PC is not maintainable unless the accused persons are in custody.
(3.) Mr. Bose, learned advocate appearing for the petitioners submit that the petitioners surrendered before the learned Magistrate after anticipatory bail was granted to them. Relying upon the judgement of the Hon'ble Supreme Court reported in AIR 1980 SC 785, Niranjan Singh & Anr. vs. Prabhakar Rajaram Kharote & Ors., submits that where the accused had appeared and surrendered before the Court, the Court would have jurisdiction to consider the bail application as the accused would be considered to have been in custody within the meaning of section 439 Cr. PC. Now in the context of section 439, custody is physical control or at least physical presence of the accused in Court coupled with submission to the jurisdiction and orders of the Court. 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 jurisdiction as it was held in the case of Niranjan Singh (supra). In the present case, the petitioners surrendered before the learned Magistrate and prayed for regular bail, the learned Magistrate instead of taking them into custody, directed them to bring order from the higher Court.;