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33. It is apparent from the above that the Supreme Court has ascribed a wide meaning to the word "custody" and it has to be understood in the context of the setting in which it is used and the provisions contained in Section 437 Cr.P.C. which relates to the jurisdiction of the Magistrate to admit an accused on bail under certain circumstances which can be characterised as "in custody" in generic sense. Anybody within the control of the court is said to be in custody. What is relevant is whether the accused is in control of the court and not whether he is physically in custody of the court. Section 437 (1) Cr.P.C. provides when any person accused of the commission of a non- bailable offence is arrested or detained without warrants by an officer in-charge of a Police Station or appears or is brought before a court other than the High Court or Court of Sessions, he may be released on bail subject to the restrictions detailed in Section 437(1)(i) and (ii) Cr.P.C. The word "or appears" used in Section 437(1) Cr.P.C. signifies that on appearance of a person accused of non-bailable, the Magistrate is required to consider whether to grant or refuse bail to him/her. In case the bail is refused to such person, then the natural corollary is that he has to be taken into physical custody. Therefore, it is obvious that the moment a person accused of non-bailable offence appears in the court pursuant to the summons, he is within the control of the court till his bail application is decided, as such he is in custody of the court. In the instant case, learned Special Judge after hearing the parties dismissed the request of the petitioners to be released on furnishing personal bond with or without sureties. The moment their request was rejected, their physical custody automatically vested with the court. As such, the order of learned Special Judge remanding the petitioners to judicial custody while adjourning the matter under Section 309 Cr.P.C. cannot be faulted.

38. Similarly, on reading of Section 88 Cr.P.C. it is obvious that Section 88 Cr.P.C. empowers the court to seek bond for appearance from any person present in the court in exercise of its judicial discretion. The Section also provides that aforesaid power is not unrestricted and it can be exercised only against such persons for whose appearance or arrest the court is empowered to issue summons or warrants. The words used in the Section are "may require such person to execute a bond" and any person present in the court. The user of word "may" signifies that Section 88 Cr.P.C. is not mandatory and it is a matter of judicial discretion of the court. The word "any person" signifies that the power of the court defined under Section 88 Cr.P.C. is not accused specific only, but it can be exercised against other category of persons such as the witness whose presence the court may deem necessary for the purpose of inquiry or trial. Careful reading of Section 88 Cr.P.C. makes it evident that it is a general provision defining the power of the court, but it does not provide how and in what manner this discretionary power is to be exercised. Petitioners are accused of having committed non-bailable offences. Therefore, their case falls within Section 437 of the Code of Criminal Procedure which is the specific provision dealing with grant of bail to an accused in cases of non-bailable offences. Thus, in my considered view, Section 87 and 88 Cr.P.C. only defines the parameters of power of the court in certain situation and those provisions have no bearing on the right of a person accused of non-bailable offence to bail. For that purpose, the relevant provision is Section 437 Cr.P.C. and the plea of the accused for his release on bail is required to be considered by the Court on the basis of well established principles i.e. the nature of the accusation; the nature of the evidence collected in support of accusation; possibility of the accused interfering with the process of justice and the possibility of the accused fleeing away from justice.

40. I am not convinced with the above submission. Perusal of Section 204(1)(b) would show that it confers discretion upon the court taking cognizance of a warrant trial case to either issue warrants or summons for appearance of the accused. The use of this discretion is only to procure the presence of the accused for trial. It has nothing to do with the grant or refusal of bail to the accused. For that purpose, only relevant Section is 437 Cr.P.C. in accordance with which the court is supposed to exercise its judicial discretion to grant or refuse the bail. Just because the court taking cognizance of a warrant trial case has opted to issue summons for appearance instead of warrants, it cannot be assumed that he had applied its mind to the facts of the case from the point of view of grant or refusal of bail to the accused. In Sreekumar Vs. State of Kerala,(supra), it was observed thus:

42. Before adverting to the submissions of the petitioners on merits, it would be appropriate to have a look on the law of bail.

43. In Gudikanti Narasimhulu Vs. Public Prosecutor, (1978) 1 SCC 240, Supreme Court has highlighted the importance of personal liberty of an accused. In the said judgment, the Supreme Court has emphasized on creating a balance between the right and liberty guaranteed under Article 21 of the Constitution of India and the interest of justice as well as the society which is sought to be protected by Section 437 Cr.P.C., wherein it is, inter alia, observed thus: