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"7. A combined reading of the principles laid down in the above noted two cases makes it clear that when the person concerned surrenders before the Sessions Judge and moves for bail under Section 439, Cr.P.C. and the Court accepts such surrender, then the Sessions Court assumes jurisdiction to exercise the discretion cither way i.e. to grant bail or to refuse bail and to order remand of the person concerned to judicial custody, if the offence is non-bailable one. The petitioner has no doubt voluntarily surrendered before this Court and if his surrender is accepted and the discretion is exercised in his favour by granting bail then there is no problem. But if after acceptance of his surrender the bail application is found to be devoid of merit and the discretion is exercised against the petitioner refusing to grant bail, then the Court will have no power to order remand of the petitioner to judicial custody because of the peculiar circumstance now prevailing. The peculiar circumstance, is that the anticipatory bail order of the Hon'ble Court is in force till 7th of the current month. As a matter of fact, for that reason neither the learned Addl. C.J.M., refusing bail could be able to remand the petitioner to custody nor this Court could be able to do so on the last date when the petitioner was physically present in the Court and the order on his bail application was reserved. In such situation this Court is not in a position to exercise the discretion to accept the voluntary surrender of the petitioner. Hence the voluntary surrender of the petitioner before this Court is not accepted. Consequently, applying the principles laid down in the above noted decision of our own High Court, I would hold that the petitioner is not in 'custody' within the meaning of Section 439, Cr.P.C. and when one of the basic preconditions of that provision is not satisfied, the further question of consideration of his bail application on merit does not arise. As such without entering into the merits I hold that the bail application is not maintainable under Section 439, Cr.P.C.".
"The Apex Court nowhere observed that once an application under Section 439, Cr.P.C. is filed before the Sessions Judge 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 this surrender......."

The aforesaid decision related to a case where the accused on receiving summons from the Court of the S.D.J.M. in a case exclusively triable by a Court of Session had directly surrendered before the Additional Sessions Judge and prayed for bail, but the Additional Sessions Judge refused the application to accept, the surrender and rejected the application for bail. In the aforesaid context, this Court observed that there was no right of an accused person to surrender before the Sessions Judge and even if such surrender is made before the Sessions Judge, the Court had a discretion not to accept the surrender. I cannot see how the principle decided in the said case can be made applicable in the facts and circumstances of the present case and could have prompted the Additional Sessions Judge to hold that the application of the present petitioner was not maintainable in view of the specific direction of the High Court in an application under Section 438 permitting the accused to remain on interim bail and to file regular bail petition before the Magistrate under Section 437 and to move thereafter the higher Court in case the bail was rejected by a Magistrate.

11. The learned counsel for the opposite party has contended that the intention of a Court exercising power under Section 438 and granting anticipatory bail for a limited duration is not to give opportunity to the accused to remain outside and yet his application under Section 439 should be considered for regular bail. According to him even where the Court permits such an accused to be on interim bail for a period beyond the date order under Section 437, such a period cannot be extended indefinitely and should be only for the purpose of enabling the accused to file the application for regular bail before the higher Court. He states that it can never be the intention of the Legislature that though prayer for anticipatory bail would be rejected, and interim protection be given for a limited period, it would enure beyond the time required for filing application for bail before the higher Court under Section 439, Cr.P.C., specially in a case like this where the allegations are serious. In the present case, I am not concerned with the question as to what should be the appropriate period of extended anticipatory bail. In the present case, an order has already been passed in the earlier application under Section 438, that the accused will continue on anticipatory bail even after rejection of his petition under Section 437 till 7th October, 1997. It is, of course, true that it was nowhere indicated in the earlier judgment that the period of such "extended anticipatory bail" should continue indefinitely, nor was it indicated that the higher Court (in this case, the Addl. Sessions Judge) was bound to dispose of the bail application before the expiry of the period of extended anticipatory bail. What was intended that even after the rejection of the regular bail application by the Magistrate under Section 437, a further opportunity was to be given to the accused to move bail application before the higher Court. Such an extended period of anticipatory bail had been contemplated and granted in the Supreme Court decision reported in 1996 (7) SCALE (SP) 20 Supreme Court has nowhere laid down that such an extended period of anticipatory bail is co-terminus with the filing of the bail application before the higher Court, nor the Supreme Court has indicated that the higher Court must decide the matter under Section 439, Cr.P.C. within such extended period of anticipatory bail. Similarly, in the previous decision of the High Court also, it was neither contemplated nor directed that the higher Court while dealing with the matter under Section 439, Cr.P.C. is required to dispose of the bail petition before the expiry of the extended date of anticipatory bail. The real import of the decision of the Supreme Court in 1996 (7) SCALE (SP) 20 which has been followed in the earlier decision of this Court is that the period of anticipatory bail may extend to a period beyond the dismissal of the application for regular bail under Section 437, to enable the accused person to file bail application before the higher Court contemplated in Section 439, Cr.P.C. The Court granting anticipatory bail for limited duration may, depending upon the facts and circumstances of a particular case, grant interim bail till the date of surrender of the accused before the Magistrate or till the date of disposal of such application under Section 437 before the Magistrate, or even till a date beyond the date of such disposal by the Magistrate. In the first two cases, there cannot be any dispute that the Magistrate gets jurisdiction to remand the accused if bail application is rejected, but in case where the duration of the limited anticipatory bail is for period beyond the date of disposal of the application under Section 437, though the Magistrate rejects the bail petition, the accused cannot be remanded, because he remains under the umbrella of anticipatory bail. Such an order can be passed indicating that period of anticipatory bail is to continue for a particular period from the date of disposal of the application for regular bail under Section 437, as had been done by the Supreme Court, or by fixing a particular date till which it has to remain in force with the direction that the application for regular bail is to be disposed of by the Magistrate by a particular date, as had been done in the case of the present petitioner in his previous application under Section 438, Cr.P.C.. But in either case, it can not be said that the application under Section 437 is not to be considered or would be incompetent as the accused is not in custody. If such an application under Section 437 is competent, it is axiomatic that an application for bail under Section 439 before the higher Court would also be competent notwithstanding the fact that the accused may not be in actual custody and notwithstanding the further fact that neither Magistrate considering the application under Section 437, nor the higher Court considering the application under Section 439 would be in a position to remand the accused to actual custody till the expiration of the duration of the limited anticipatory bail. If such an application under Section 439 was maintainable at the time of filing the application, such application is bound to be considered notwithstanding the fact that at the time of consideration of the bail application, or even at the time of passing the final order, the accused still continues to be under the umbrella of anticipatory bail valid till a particular future date. This is not to suggest that in each and every case, the Court granting anticipatory bail for a limited duration should grant it for a period which, for all practical purposes, becomes an anticipatory bail for "unlimited period". What should be the proper period which would be fit case for grant of such anticipatory bail for limited duration would evidently depend upon facts and circumstances of each case. Be that as it may, the fact remains that in respect of the present petitioner, the High Court on earlier occasion had granted anticipatory bail till 7th October, 1997, if the decision of the Magistrate on the application under Section 437 was in the negative. Therefore, the Additional Sessions Judge could not have rejected the bail petition under Section 439 by saying that he was not in a position to accept the surrender of the accused-petitioner on the ground that the Court was powerless to remand the accused to custody in the eventual dismissal of the bail application.