Orissa High Court
Bishnu Mallick vs State Of Orissa And Anr. on 11 August, 1993
Equivalent citations: 1993CRILJ3817
ORDER L. Rath, J.
1. An Assistant Sessions Judge acting as the Additional Sessions Judge, Jajpur having refused the applications of the petitioner to accept his surrender and release him on bail, he has filed this application under Section 482 of the Code of Criminal Procedure raising the question that once an accused surrenders before the Court and files an application for bail, the Additional Sessions Judge is either to allow him to go on bail or refuse the bail and remand him to custody, but cannot pass orders refusing to accept his surrender and entertain the application for his bail. The brief facts necessary to elucidate the submission are that the petitioner is involved in an offence under Section 436, I.P.C. at the instance of the opposite party No. 2 as the informant. The police having submitted final form, the informant filed a complaint alleging offence under the same section on which after holding an inquiry under Section 202, Cr.P.C., the learned S.D.J.M. directed issue of summons to the petitioner. On receipt of summons, the petitioner moved an application before the Additional Sessions Judge, Jajpur to accept his surrender and also moved another application for bail. The learned Addl. Sessions Judge being absent, the Assistant Sessions Judge remaining in charge passed orders that in view of the decision of this Court reported in 1991 (1) Orissa LR 138 (Smt. Basanta Sahu v. Padma Charan Sahu) deprecating the developing practice of seeking bail under Section 439, Cr. P. C. from the Sessions Judge whereas the matter is to be first dealt with by the Court of the first instance, and observing that the Magistrate should be first approached for the purpose instead of the Sessions Judge, refused to accept the surrender of the petitioner and rejected both the applications.
2. Mr. Dhal, learned counsel for the petitioner, has urged, relying on AIR 1980 SC 785 : (1980 Cri LJ 426) (Niranjan Singh v. Prabhakar Rajaram Kharote), that once an application is filed before the Additional Sessions Judge surrendering before him and moving for bail under Section 439, Cr. P. C, the petitioner must be taken to be in judicial custody for which reason it is mandatorily required that his application for bail is to be entertained and disposed of either allowing or rejecting it. No third course is open to the Additional Sessions Judge i.e. not to accept the surrender. According to him, the very moment the petition for surrendering before the Court is filed and that application is taken up for consideration, the applicant having surrendered himself in Court is in custody as contemplated under Section 439, Cr. P. C.
3. The submission does not enjoy support of law. 'Custody' always involves a concept of two parties, one who takes into custody or the other whose custody has been taken of. To effect a custody, the first one must act, though the other may either be active or be passive. It is true that when a petition is made by an accused surrendering before a Court, he offers his own custody to the Court. The Court if it accepts the application and assumes custody, it has accepted the custody of the accused and thereafter is bound to deal with him on his application for bail either to refuse or allow the same. In the event it is refused, the Court has to remand him to either police or judicial custody. It is however another thing to say that on the filing of the surrender application the Court must of necessity be deemed to have taken custody. There is no warrant for such proposition. An application under Section 439, Cr. P. C. is maintainable both before the Court of session as well as the High Court. Conceding to the submission of Mr. Dhala would mean that if in respect of summons or warrants issued by a Magistrate surrender is made before the High Court or the Court of Session and an application for bail is moved without surrendering to the custody of the Magistrate, the High Court or the Court of Session will be bound to deal with the application for bail of the petitioner and would have no power to direct him to surrender before the Magistrate and direct the Magistrate to consider the application for bail. This would give a meaning to Section 439, Cr. P. C. not contemplated under the Code. It is for such reason that the observation was made, as has been rightly referred to by the learned Court below, in 1991 () Orissa LR 138 (supra) deprecating the practice of persons moving at the very first instance either this Court or the Sessions Court without going to the Court which issued the summons or warrant.
4. AIR 1980 SC 785 (supra) does not lay down any contrary position of law. In that case certain police personnel had been made accused in a complaint case. Their application for bail had been rejected by the Magistrate who also stayed the issuance of the warrants. The accused thereafter moved the Court of Session which allowed their application for bail. The complainant moved the High Court in revision but that Court having declined, he came before the Supreme Court under Article 136 of the Constitution of India. One of the questions raised before the Apex Court was that the jurisdiction under Section 439, Cr. P. C. was not available to be exercised by the Sessions Court as the accused were not in its 'custody'. The Supreme Court held, while conceding to the position that the precondition for exercise of the power under Section 439, Cr. P. C. is to have the accused in custody that 'custody' literally means having taken control of the person and where the accused physically submits before the Sessions Judge, his jurisdiction to grant bail arises. It was observed that in the context of Section 439, custody means physical control or at least physical presence of the accused in Court coupled with submission to the jurisdiction and orders of the Court. Explaining further, it was observed that when the petition for bail was filed before the Sessions Court, that Court acquired jurisdiction to consider the bail application. It could have refused bail and remanded the accused to custody though in that case it had exercised jurisdiction in favour of the accused and had allowed them to go on bail.
5. The Apex Court nowhere observed that once an application under Section 439, Cr. P. C. is filed before the Sessions Court surrendering to its custody and moving it for bail, the Court comes under an obligation to accept the surrender of the accused and deal with his application for bail. Undoubtedly the application being made the Court acquires jurisdiction to deal with it, but entertaining the application and considering the same does not unequivocally mean the acceptance of the surrender. The petitioner had filed two applications before the Court, one to accept his surrender and the other to enlarge him on bail. Even if two applications were not filed and only an application for bail is filed, it would inherently mean the accused surrendering before the Court and moving for bail. When the application is considered and even the records are called for to decide whether to accept the surrender or not, it has to be said that no final decision on the surrender has been taken and unless the surrender is accepted, the question of consideration of bail would not arise though ordinarily, it has to be stressed, that question of acceptance of surrender should be decided at the first instance. In other cases, it may even become necessary for an interim acceptance of the surrender or pass consequential orders for interim custody till the final orders are made. The Court has a discretion to exercise in the matter of acceptance of surrender and once it is exercised in the negative, the accused would not be entitled to be released on bail by it. There may be cases where surrender is accepted in which case the accused shall be in its custody and the Court would have a duty to pass orders regarding his bail, but if the pre-condition is not satisfied the further question of consideration of bail would not arise. This would apply equally for the High Court as well as the Sessions Court.
6. The decision of this Court in 1991 (1) Orissa LR 138 is applicable in this context that a general practice of surrendering before the higher Courts bypassing the Court issuing the summons or the warrant is to be avoided. There is no conflict in the decision of the Supreme Court and of this Court.
7. Mr. Dhal however submits that the offence being one under Section 436, IPC and being exclusively triable by a Court of Session, the S.D.J.M. has no power to allow bail to the petitioner. His further submission is that in view of such fact, even the discretion of the Assistant Sessions Judge was not properly exercised in refusing the surrender of the petitioner and rejecting his application for bail. This submission of Mr. Dhal has force. Since admittedly the application for bail of the petitioner even if he had surrendered before the S.D.J.M. was not available to be considered, it was a case to which the principles laid down in 1991 (1) Orissa LR 138 need not have been applied. The learned Assistant Sessions Judge should have done well" in accepting the surrender of the petitioner and consider his application for bail. In that view of the matter, this petition is allowed. The matter is remanded to the learned Additional Sessions Judge to consider the application of the petitioner for bail on merits and pass orders.