ORDER
A.K. Saxena, J.
1. This application has been filed under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) for grant of regular bail in connection with Crime No. 358/05 registered with Police Station Madan Mahal, Jabalpur for the offences under Sections 420, 467 and 468 of the Indian Penal Code.
2. The applicant had filed an application under Section 438 of the Code for grant of anticipatory bail and that application was allowed by this Court vide order dated 15-2-2006 passed in M.Cr.C. No. 346/06 and it was directed that the order will be operative for 60 days and in the meanwhile, the applicant is free to move regular bail application before the Competent Court. Thereafter, the applicant moved an application before the Sessions Court under Section 439 of the Code and the same was rejected by Tenth Additional Sessions Judge, Jabalpur vide order dated 20-3-2006. While rejecting this bail application, the learned Additional Sessions Judge observed as follows :
Applicant is not present in the Court. Learned Counsel for the applicant has informed, that he is unable to keep applicant present in the Court. However, he has contended, that presence of applicant is not a must to decide an application under Section 439, Cr.PC. He has placed his reliance on in order dated 10-3-06 passed in M.Cr.C. No. 2313/06 by Hon’ble High Court.
I have gone through the order and I have also gone through the provisions of the Section 439, Cr.PC, an application under Section 439, Cr.PC can be considered only, when \applicant, who is on anticipatory bail is either in custody or present in the Court. Because, if, application under Section 439, Cr.PC is rejected, then applicant would be required to be taken into custody. Applicant is not present before this Court.
Therefore, an application under Section 439, Cr.PC cannot be considered. Therefore, this application for grant of regular bail, in absence of applicant is rejected.
3. The learned Counsel for the applicant vehemently argued that the order of the learned Additional Sessions Judge is misconceived and totally against the legal provisions of bail. It has been further submitted that the learned Additional Sessions Judge failed to follow the principles of law as enumerated by this Court in M.Cr.C. No. 2313/06, Smt. Nisha Singh v. State of M.P. It was not at all necessary for the applicant to remain in custody or present before the Court at the time of consideration of his application of regular bail because he was on anticipatory bail and his application under Section 439 of the Code was not rejected. He can avail the umbrella granted by the High Court under Section 438 of the Code till the disposal of application filed for regular bail.
4. Before coming to the facts of this case in hand, it would be proper to look at the order passed by this Court in M.Cr.C. No. 2313/06 (supra). In this case, this Court observed as follows :
It is further submitted on behalf of applicant that as per learned Sessions Judge, Jabalpur, at the time of consideration of the bail application filed under Section 439 of Cr.PC, the accused person must be in custody. In my opinion, it cannot be a condition precedent in all the cases. If an accused is granted bail under Section 438 of Cr.PC by the High Court or by Court of Session and in the given time, the accused moved an application under Section 439 or 437 of Cr.PC, it is for the Sessions Court or the Magistrate to consider that application and if it is rejected then only accused can be taken into custody, who is present before the Court. It is for the higher Court to see in such cases whether the accused is in custody or not when he files an application under Section 439 of Cr.PC. Since, this Court granted anticipatory bail to the applicant, certainly the application under Section 439 of Cr.PC would He in the Sessions Court and it would not be the condition precedent that the applicant must be in custody.
It is nowhere mentioned in this order that if an application under Section 439 of the Code is filed, the applicant would be required to be taken into custody or in all cases, the application filed under Section 439 of the Code cannot be considered in absence of applicant/accused. It appears that the learned Additional Sessions Judge has failed to appreciate the order passed by this Court in proper perspective.
5. In the case of Sunil Gupta v. State of M.P. reported in 2005(3) M.P.H.T. 272, it was observed as follows :
In the opinion of this Court, once a person is physically present and he is in custody of that Court, he cannot move out of the custody of that Court, if the application of regular bail is rejected. No doubt, that when a person surrenders before the Competent Court for consideration of his bail application moved under Section 439, Cr.PC, he remains in custody at that time but after rejection of his application, if he is allowed to go out of custody, how can a person be said to be in custody who is totally free ? The said person cannot be said to be in custody and therefore his application for regular bail under Section 439, Cr.PC shall not be maintainable in this Court.
In this citation, the words ‘in this Court’ are very important and these words clearly indicate that the application of a person filed under Section 439 of the Code would not be maintainable in the ‘Higher Court’, I repeat the words ‘Higher Court’, where that person does not surrender at the time of rejection of his regular bail application or who moves out of the custody of the Court after rejection of his bail application or in other words, who is not in custody when he moves an application for regular bail in ‘Higher Court’.
6. The matter was also referred to the Division Bench of this Court on the following points apart from other point:
(ii) Whether the protective umbrella granted under the anticipatory bail order can be claimed by the petitioner in case where his application for regular bail has been rejected by the Court of Sessions and in such a situation whether his application under Section 439 of the Code of Criminal Procedure, 1973 would be maintainable ?
(iii) Where the petitioner who has been enlarged on anticipatory bail for a limited duration and whose application under Section 439 of the Code is rejected by the Sessions Court, but at the time of consideration of his application, either he was not present before the Court or he moved out of the custody of the Court whether his application would be maintainable under Section 439 of the Code before the High Court ?
In the case of Brijesh Garg @ Poda v. State of M.P. (M.Cr.C. No. 4984/2005), the Division Bench of this Court answered these questions vide order dated 18-8-2005 as follows :
2. Where the anticipatory bail is granted for limited duration and it is left to the regular Court to deal with the matter on an appreciation of evidence placed before it when the investigation is still in progress or the charge-sheet is submitted, sufficient time can be given to the applicant to move to Regular Court for bail. Till the application is filed and accused surrenders to jurisdiction or orders of the Court, the Court may allow the accused to remain on anticipatory bail. Anticipatory bail may be granted for a duration which may extend to the date on which the bail application is taken up for consideration. When the bail application is rejected by the Regular Court, the applicant cannot have further opportunity to move to the High Court under the protective umbrella. Direction under Section 438 of the Code is to be issued only at pre-arrest stage. Unless a person is in custody, an application for regular bail is not maintainable.
3. For the purpose of moving an application under Section 439 of the Code, the applicant must be in custody. Section 439 of the Code mandates the applicant to be in custody. If the person is not in custody of the Court or moves out of the custody, an application under Section 439 of the Code is not maintainable. The applicant who has been enlarged on anticipatory bail for limited duration and whose application under Section 439 of the Code is rejected by the Sessions Court cannot be allowed to remain at large to enable him to move the Higher Court for granting bail under Section 439 of the Code.
7. On consideration of the above mentioned citations, the legal position emerges as follows :
Where an applicant has been enlarged on anticipatory bail for a limited period with a liberty to file an application before the Competent Court for regular bail, and if he files an application before that Competent Court either under Section 437 or under Section 439 of the Code, he can avail the umbrella granted under Section 438 of the Code till his application filed under Section 437 or 439 of the Code is allowed or rejected. In case the application for regular bail is rejected, he should be taken into custody, if present and till the rejection of the application filed under above mentioned provisions, the Competent Court is not empowered to take the applicant into custody because he is on anticipatory bail. Therefore, if a person files an application for regular bail before Competent Court and that person is on anticipatory bail, it would not be a condition precedent for consideration of the application for regular bail that the person, must remain present in Court or he must be in jail. This Court has said in above mentioned citations that a person who is on anticipatory bail for a limited duration, files an application for regular bail before the Competent Court either under Section 437 or under Section 439 of the Code, shall remain on bail till the disposal of that application and if, at the time of rejection of regular bail application, that person is not present in Court and not taken into custody for any reason or moves out of the custody of the Court, the application under Section 439 of the Code would not lie in Higher Court. If an application has been filed under Section 437 of the Code by such person and if it is rejected by the Magistrate, certainly the application under Section 439 of the Code would not lie in the Court of Sessions, where the applicant is not in custody. If an application under Section 439 of the Code of such person is rejected by the Sessions Court, then the application under Section 439 of the Code would not lie in the High Court, if that person is not in custody. It clearly means where a person files an application under Section 439 of the Code in ‘Higher Court’ after rejection of his regular bail application by the Subordinate Court, then it would be a condition precedent for maintainability of the application that such person must be in custody.
8. Therefore, considering all the facts and circumstances, it would be proper to explain present legal position in following plain and simple words so that the Subordinate Courts may not feel any difficulty with regard to maintainability of bail applications filed under Section 437 or 439 of the Code :
(a) If a person has been enlarged on anticipatory bail for a limited period with this condition that if he so desires, may file an application for regular bail before the Competent Court and the Competent Court is the Court of Magistrate, the bail application under Section 437 of the Code would lie and it is not necessary at all that such person must remain present before the Court or he must be in jail for the maintainability of that application because he is on anticipatory bail and the umbrella has already been provided to him for a limited period or till the rejection of that application, whichever is earlier.
(b) Where the Court of Sessions is Competent Court and if an application for regular bail has been filed under Section 439 of the Code, it would certainly be maintainable even if the applicant is not present in Court or he is not in jail because he is on anticipatory bail and the umbrella has already been provided to him for a limited period or till the rejection of that application, whichever is less. If this application is rejected then only the person can be taken into custody, if present.
(c) Where an application under Section 437 of the Code is rejected by the Magistrate and the applicant has not been taken into custody because of any reason or he moves out of the custody of the Court, then the application under Section 439 of the Code would not be maintainable in the Court of Sessions. Similarly, if an application under Section 439 of the Code is filed before the Sessions Court because the Sessions Court is the Competent Court and after rejection of that application, if the applicant is not taken into custody for any reason or he moves out of the custody of the Court, the application under Section 439 of the Code would not be maintainable in the High Court. For maintainability of the application for regular bail in both the cases, the actual custody of such person would be the condition precedent.
9. Now, I shall deal with the matter in hand. The learned Additional Sessions Judge, while passing the order on 20-3-2006, came to this conclusion that the application of the applicant, who is on anticipatory bail, can only be considered when he is in custody or present in Court because, if the application filed under Section 439 of the Code is rejected, he would be required to be taken into custody and since the applicant is not present before the Court, therefore, an application under Section 439 of the Code cannot be considered and the same was rejected. In the opinion of this Court, this part of the order impugned appears to be not within the legal frame-work. It is not clear from the order impugned whether any application under Section 437 of the Code was moved before the Magistrate or not or whether an application under Section 439 of the Code was filed directly in the Court of Sessions ? If an application was filed by this applicant before the Court of Magistrate and after rejection of that application if the applicant was not sent to judicial custody or he was not in custody when the application was filed before the Sessions Court, certainly, the learned Additional Sessions Judge was right in passing this part of the order impugned that the application is not maintainable because the applicant is not in custody and in such circumstances, the application under Section 439 of the Code was not maintainable. But if that application was filed in the Sessions Court under Section 439 of the Code without filing an application under Section 437 of the Code because the Court of Sessions is the Competent Court, then it is nowhere required for consideration of application for regular bail that the applicant shall remain present before the Court or he must be in custody for the simple reason that he was on anticipatory bail for a temporary period when that application was considered by the Sessions Court.
10. The present application has been filed before this Court under Section 439 of the Code. As earlier held by this Court that if an application under Section 439 of the Code is rejected by the Competent Court, i.e., the Court of Sessions and the applicant is not in custody at the time of filing of the application, his application would not be maintainable in the High Court. Therefore, present application cannot be allowed, as it is not maintainable. Considering the order impugned, it is directed that the applicant, if so desires, may file an application under Section 439 of the Code again before the Sessions Court within five days from today, which shall be considered and disposed of within three days from the date of filing of the application, as the matter relates to local Police Station and during this period or till the disposal of the application (whichever is earlier), the applicant shall not be taken into custody.
11. For the foregoing reasons, this application is dismissed as not maintainable.