B. A. No. 2765 of 2006. Case: Punam Arya Vs State of Jharkhand. Jharkhand High CEGAT & CESTAT High Court
| Case Number | B. A. No. 2765 of 2006 |
| Counsel | For Petitioner: Rajesh Kumar Mahtha, Adv. and For State: Alok Lal A.P.P. |
| Judges | Narendra Nath Tiwari, J. |
| Issue | Criminal Procedure Code (2 of 1974) - Section 439 |
| Citation | 2006 CriLJ 3922 |
| Judgement Date | May 04, 2006 |
| Court | Jharkhand High CEGAT & CESTAT High Court |
Order:
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In this case the learned Court below has rejected the application for bail of the petitioner, who has earlier surrendered before the Trial Court and furnished bail bond in compliance of the order of anticipatory bail, observing that since the petitioner is not in custody, application for regular bail under Section 439 of the Code of Criminal Procedure is not maintainable. A question arising in this case is as to whether a person, who has surrendered before the Court and furnished bail bond in compliance of the order of the anticipatory bail and is still under the period of protection of anticipatory bail, can be said to be 'in custody' within the meaning of Section 439 of the Code of Criminal Procedure. Section 439 of the Code of Criminal Procedure reads thus: -
"439. Special powers of High Court or Court of Session regarding bail. - (1) A High Court or Court of Session 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;
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified;
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.
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From bare reading of the section it appears that for an application for regular bail a person must be in custody. The question is as to whether a person who is in jail can only be said to be in custody or whether a person who had appeared and surrendered before the Court and furnished bail bond can be also said to be 'in custody' for the purpose and within the meaning of Section 439 of the Code of Criminal Procedure? The said question fell for consideration of the Hon'ble Supreme Court in Niranjan Singh v. Prabhakar Rajaram Kharote (1980) 2 SCC 559: (AIR 1980 SC 785). In paragraph 7 of the said judgment the Supreme Court...
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