In the High Court of Jharkhand at Ranchi
W.P.(Cr.) No.418 of 2009
Sita Devi .......... ............................. Petitioner
VERS US
State of Jharkhand and others... Respondents
CORAM: HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioner : Mr. Rupesh Singh
For the State : J.C to G.P.III
3. 18.11.09
Heard learned counsel appearing for the petitioner and
learned counsel appearing for the State.
Learned counsel appearing for the petitioner submits that
the petitioner was arrested on 19.10.2009 in connection with Barhi
P.S. case no.246 of 2009 by a Police Officer attached to Barhi
Police Station. Soon thereafter, the petitioner made complaint that
she was not feeling well and, therefore, she was referred to
Primary Health Centre, Barhi, where first aid was given and then,
she was referred to Sadar Hospital, Hazaribagh. After four days of
getting treatment, she was referred to RIMS, Ranchi on 24.10.2004
and while the petitioner was undergoing treatment at RIMS,
Ranchi, an application was filed stating therein that since the
petitioner had not been produced before the court within 24 hours
of her arrest, she may be enlarged on bail. However, that
application was not entertained and was simply kept on the record
presumably for the reason that she had not been remanded to
judicial custody.
In the instant case, it does appear that the petitioner on
being arrested, was never produced before the court, as,
according to the petitioner itself, her condition was not good and
she had to be removed to Hospital for treatment but there has
been no denying of the fact that arrest has been effected on
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19.10.2009 and if the arrest has been effected on 19.10.2009, the
petitioner can or can not be said to be in custody in terms of
Section 437(1) of the Code of Criminal Procedure when the
application for bail was filed. This is the question which precisely
fell for consideration.
What is the meaning of custody under Section 439 of the
Code of Criminal Procedure, came up for consideration before the
apex Court in a case of Niranjan Singh and another vs.
Prabhakar Rajaram Kharote and others (AIR 1980 SC 785)
wherein it was held hereunder:
” When is a person in custody, within the meaning of
Section 439 of the Code of Criminal Procedure. When
he is in duress either because he is held by the
investigating agency or other police or allied authority
or is under the control of the Court having been
remanded by judicial order or having offered himself
to the Courts jurisdiction and submitted to its orders
by physical presence. No lexical destrity nor
prcedential profusion is needed to come to the
realistic conclusion that he who is under the control of
the Court or is in the physical hold of an officer with
coercive power is in custody for the purpose of
Section 439. This word is of elastic semantics but its
core meaning is that the law has taken control of the
person. The equivocatory quibblings and hide and
seek niceties sometimes heard in Court that the police
have taken a man into informal custody but not
arrested him, have detained him for interrogation but
not taken him into formal custody and other like
terminological dubiotics are unfair evasions of the
straightforwardness of the law. We need not dilate on
this shady facet here because we are satisfied that
the accused did physically submit before the Sessions
Judge and the jurisdiction to grant bail thus arose.
Custody in the context of Section 439, ( we are
not, be it noted, dealing with anticipatory bail under
Section 438) is physical control or at least physical
presence of the accused in Court coupled with
submission to the jurisdiction and order of the Court.”
Thus, it has been held in the said case that even a person
under the control of the Court either having been remanded by the
judicial order or having offered himself to the Court’s jurisdiction
and submitted to its orders by physical presence before the Court
or he is held by the investigating agency or police or other allied
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authority will be treated to be in custody. No other meaning can be
imported with the ‘word’ custody appearing also under section
437(1) of the Code of Criminal Procedure.
In that view of the matter, the application for bail when was
filed on behalf of the petitioner before the Chief Judicial Magistrate,
Hazaribagh was very well maintainable and it was quite wrong on
the part of the Chief Judicial Magistrate to keep it pending as
premature application on account of the fact that the petitioner has
not been remanded to juridical custody.
In that situation, this application is disposed of with a
direction to the petitioner to press the bail application pending from
before or to file a fresh bail application in terms of Section 437 of
the Code of Criminal Procedure, which shall be disposed of at the
earliest.
Let a copy of this order be communicated to the court
concerned through FAX at the cost of the petitioner.
(R.R.Prasad, J.)
ND/