When accused is deemed to be custody of court for granting him bail?

In Niranjan Singh and another Vs. Prabhakar
Rajaram

Kharote and others, AIR 1980 SC 785.
Interpreting the provision of Section 439 of the Code. Their
Lordships took a view that when an accused 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 Court’s jurisdiction and submitted to
its orders by physical presence would be deemed to be “ in
custody” for the purpose of Section 439. In para-8 of the
judgment it was observed:
“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 orders of the Court”.
It was further observed:
“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 direction.”
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr.MP(M) No. 11692 of 2013
Date of Decision 8th November, 2013

Gurbachan Singh & another
Versus

State of H.P.

The Hon’ble Mr. Justice Dev Darshan Sud, J.1
Citation; 2014 (1) crimes 1 HP



The petitioners, who are present in Court, are
charged for offences under Sections 3(1)(x) of the Scheduled
Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989
registered with Police Station, Shimla. FIR No. 198 of 2013 dated
21.10.2013 has been lodged against them.
2.
It is submitted by learned Additional Advocate
General that offence is non-bailable and in this case no bail can
be granted. This submission cannot be accepted.
3.
In Baldev Singh Bhardwaj vs. State of H.P. 2003(2)
Shim.L.C. 55 this Court held:-

“7.
The first question which arises for consideration is
admitted on bail under Section 439 of the Code?
No person it is settled, accused of an offence has a
8.
whether accused who is not in custody of the Police can be
right to move the Court for the grant of bail under Section
439 of the Code unless he is in custody. Whether an
accused who surrenders before the Court can be said to be
in custody for the purpose of Section 439 of the Criminal
Procedure Code is question raised by the learned
Additional Advocate General. This question is no longer
res-integra.
In Niranjan Singh and another Vs. Prabhakar
Rajaram

9.
Kharote and others, AIR 1980 SC 785.
Interpreting the provision of Section 439 of the Code. Their
Lordships took a view that when an accused 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 Court’s jurisdiction and submitted to
its orders by physical presence would be deemed to be “ in
custody” for the purpose of Section 439. In para-8 of the
judgment it was observed:
“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 orders of the Court”.
It was further observed:
“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 direction.”
10.
In the present case the accused surrendered in the
Court on 7th April, 2003 and it present in the Court even
today submitting himself to the jurisdiction of the Court,
therefore, he would be deemed to be in custody for the
purpose of Section 439 of the Code.”
(at p. 56)

The petitioners are taken into custody and released
4.
on bail subject to their furnishing personal bond in the sum of
Rs. 25,000/- each with one surety in the like amount each to the
satisfaction of the Additional Registrar (Judicial) on or before 11th
November, 2013. It is further directed:
(a)
The petitioners shall join the investigation as and when
(b)
called for by the Investigating Officer.
The petitioners shall not in any manner either directly
or indirectly, tamper with the prosecution evidence

or in any manner try to overawe, influence or threaten
prosecution witnesses.
( c)
The petitioners shall not abscond from the jurisdiction of
learned Sessions Judge ,Una.
(e)
(d)
They shall not indulge in any anti social activities during
the period when they are on bail.
It is clarified that in the event of violation of any of the
conditions imposed, the bail shall stand cancelled and the
5.
matter referred to this Court.
Petition stands disposed of. It will be open to the
parties to apply for modification of this order, if the need so
arises.
November 08, 2013(ms)
(Dev Darshan Sud),

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