S. Pujahari, J.:— This matter is taken up by video conferencing mode.
2. Heard learned counsel for the petitioner and learned counsel for the CBI.
3. The petitioner having been implicated in CBI, SCB/SPE, Kolkata No. RC.16/S/2014 dated 05.06.2014, has filed this petition for his release on bail, as his prayer for bail has been refused by the learned Special CJM (CBI), Bhubaneswar in SPE Case no. 11 of 2014 vide order dated 09.06.2021. The offence alleged against the petitioner is punishable under Sections 120-B/420/409 of the IPC read with Section 66 of the I.T. Act and Sections 4/5/6 of Prize Chits and Money Circulation (Banning) Act.
4. As revealed from the record, the prayer for release of the petitioner on pre-arrest bail having been refused by this Court vide ABLAPL No. 14813 of 2019, he had moved the Apex Court in Criminal Appeal No. 468 of 2021 arising out of Special Leave to Appeal (Crl.) No. 3399 of 2021 and the Apex Court while disposing of the said Criminal Appeal, have held as follows:
“Leave granted.
It cannot be disputed that the prosecution did not seek the interrogation of the appellant on or before filing of the charge sheet. Charge sheet has been filed. This being the position, learned counsel for the appellant confines the relief only to appear before the Trial Court and apply for regular bail and he be not arrested in that period of time.
In the given factual situation, we grant protection to the appellant for a period of 8 weeks, within which he may apply for regular bail before the Trial Court and obtain necessary orders.
The criminal appeal stands disposed of.
Pending application, if any, stands disposed of.”
5. Though the N.B.W.(A) was issued against the petitioner by the Court to secure his attendance, he without remaining physically present in the Court in seisin over the matter moved an application under Section 437 of Cr.P.C. for bail. The same was, however, refused.
6. The petitioner, however, has moved this Court thereafter for his release on bail and has invoked the jurisdiction of this Court without surrendering to the custody. The learned counsel for the petitioner submits that the petitioner being present in a remote location through video conferencing and surrendering to this Court through video conferencing, this petition is maintainable. Reliance in this regard has been placed by the learned counsel for the petitioner on a decision of the Apex Court in the case of Sundeep Kumar Bafna v. State of Maharashtra, reported in (2014) 16 SCC 623 : AIR 2014 SC 1745. He further submits that the petitioner was not arrested during the time of investigation and he is not wanted by the C.B.I. and, as such, charge-sheet in this case having been filed, he deserves to be released on bail.
7. However, the learned counsel appearing for the C.B.I. would object to the prayer for bail of the petitioner with the submission that since the petitioner is not in custody, a petition under Section 439 of Cr.P.C. is misconceived.
8. It would be apposite to mention here that the petitioner though neither arrested by the police in the aforesaid case nor produced before the Magistrate nor did he appear physically, but he moved for his release on bail under Section 437 of Cr.P.C. before the learned Special C.J.M. (CBI), Bhubaneswar through his counsel, which was rejected on merit. The learned Special C.J.M. did not answer the question whether such bail application is maintainable in absence of the accused being produced before him or appearing before the Court concerned or arrested by police, even though the learned Special C.J.M. (CBI) has mentioned that the petitioner was not before the Court.
9. Before addressing the contention of the parties, it would be apposite to have a look the relevant provision of Section 439 of Cr.P.C., which reads as 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) Xxxxx xxxxxx xxxxxxx
Xxxx xxxxxx xxxxxx
Xxxxx xxxxxx xxxxxx
(1-A) xxxxxx xxxxxx xxxxxx.
(2) xxxxxx xxxxxx xxxxxx”
10. ‘Custody’ has been defined by the Apex Court in the case of Niranjan Singh v. Prabhakar Rajaram Kharote, reported in (1980) 2 SCC 559 : AIR 1980 SC 785 for consideration of the prayer for bail under Section 437 of Cr.P.C. in paragraphs-7, 8 and 9, as follows:—
“7. When is a person in custody, within the meaning of S. 439 Cr.P.C.? When he 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. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of S.439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibbling and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubiotics are unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose.
8. Custody, in the context of S. 439, (we are not, be it noted, dealing with anticipatory bail under S. 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.
9. 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 directions. In the present case, the police officers applied for bail before a Magistrate who refused bail and still the accused, without surrendering before the Magistrate, obtained an order for stay to move the Sessions Court. This direction of the Magistrate was wholly irregular and may be, enabled the accused persons to circumvent the principle of S. 439 Cr.P.C. We might have taken a serious view of such a course, indifferent to mandatory provisions, by the subordinate magistracy but for the fact that in the present case the accused made up for it by surrender before the Sessions Court. Thus, the Sessions Court acquired jurisdiction to consider the bail application. It could have refused bail and remanded the accused to custody, but, in the circumstances and for the reasons mentioned by it, exercised its jurisdiction in favour of grant of bail. The High Court added to the conditions subject to which bail was to be granted and mentioned that the accused had submitted to the custody of the court. We, therefore, do not proceed to upset the order on this ground. Had the circumstances been different we would have demolished the order for bail. We may frankly state that had we been left to ourselves we might not have granted bail but, sitting under Art. 136, do not feel that we should interfere with a discretion exercised by the two courts below.”
11. In the case of Sundeep Kumar Bafna (supra) the Apex Court placing in the case of Niranjan Singh (supra) have held that the accused can also surrender in Court of Sessions or High Court and then seek bail under Section 439 of Cr.P.C. The petitioner in this case has not surrendered to the custody by remaining physically present and filing a memo with regard to surrender, his presence through V.C. from a remote location, but it is submitted by the learned counsel for the petitioner that the case being taken up through video conferencing, the appearance of the accused through video conferencing may be considered as constructive custody of this Court under Section 439 of Cr.P.C. and his prayer for bail may be considered. This Court is unable to accept such submission, as the petitioner cannot be said to be in custody in terms of the law laid down by the Apex Court in the case of Niranjan Singh (supra), which is sine-qua-non for consideration of the prayer under Section 439 of Cr.P.C. and, as such, this petition for release of the petitioner on bail is not maintainable.
12. Accordingly, the BLAPL stands dismissed being not maintainable.
13. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No. 4587, dated 25 March, 2020 as modified by Court's Notice No. 4798, dated 15 April, 2021.
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