2020 (1) TMI 1534 - HC - Indian Laws

Seeking grant of Bail - allegation is that the applicant and the co-accused assaulted the deceased Satish Tyagi with lathi danda rod and knife wherein he received fatal injuries to which he succumbed at the hospital - HELD THAT - In the first place there can be no dispute to the fact that the present application when filed did not suffer from any defect of Section 439(1) Cr.P.C. inasmuch as the applicant was in actual physical custody of law at that time. Upon the order directing his release on interim bail by this Court vide order dated 24.09.2019 he was first released from the prison premises under orders of this Court after fulfilling the directions issued by this Court in that order. He also claims to have continuously fulfilled those directions since then. Whether the applicant was required to necessarily go back in actual physical custody of the State before the present application could be dealt with finally? - HELD THAT - Obviously this Court cannot pass bail order and thus cannot release an accused person on bail unless he has first been taken into custody or unless he is first shown to be under judicial custody. Inasmuch as it is an undisputed case between the parties that the applicant was in actual judicial custody on 24.09.2019 when the interim bail-order was passed by this Court it can never be said that the applicant has been released on bail without having been first taken into custody. In all fairness that is not even the objection of the informant or the State. This bail application when filed did not suffer from any defect of form or substance. The bail application filed by the applicant under section 439 of the Cr.P.C. 1973 was wholly maintainable. On the date of filing the bail application the applicant was in custody and he was released by this Court under specific direction contained in the order dated 24.09.2019. Since then the law had clearly taken control over his person by making him bound to the terms and conditions of the order whereon he was permitted to be released from the jail premises i.e. subject to his furnishing adequate surety and bail bond. In the instant case it must be noted there was no anticipatory bail claimed or granted. The interim-bail granted to the applicant was neither in the nature of nor it was in terms of an anticipatory bail. It was referable only to the power of this court to grant bail under section 439 Cr.P.C 1973 - As to the fact that the interim bail granted to the applicant was made time bound by 45 days it is true that the same cannot ordinarily be treated to have been extended in absence of any specific order however it is also a fact that there is no order on the order sheet to cancel or curtail the interim bail or to decide the bail application finally on 04.11.2019. Notwithstanding the lapse of 45 days time period the applicant is continuing in constructive custody and control of this Court and it would be wholly proper to condone the lapse if any on part of the applicant and to allow the applicant s conditional liberty to be maintained in terms of the order dated 24.09.2019 for the period 04.11.2019 till date - let the applicant involved in the aforesaid crime be continued on bail however on his furnishing a fresh personal bond and two sureties each in the like amount to the satisfaction of the court concerned within a period of two weeks from today with the conditions imposed.

Summary

Issues Involved:
1. Validity of the bail application under Section 439 Cr.P.C.
2. Compliance with interim bail conditions.
3. Constructive custody during the pendency of the bail application.
4. Comparison with co-accused's bail status.
5. Legal precedents and interpretation of custody under Section 439 Cr.P.C.

Issue-wise Detailed Analysis:

1. Validity of the Bail Application under Section 439 Cr.P.C.:
The bail application was filed under Section 439 of the Cr.P.C., 1973, after the applicant's bail was rejected by the Sessions Judge, Hapur. The applicant was in actual physical custody when the application was filed, fulfilling the requirement of Section 439(1) Cr.P.C. The court confirmed that the application did not suffer from any defect of form or substance, as the applicant was in custody and released under specific court directions.

2. Compliance with Interim Bail Conditions:
The applicant was granted interim bail on 24.09.2019, and the court noted that he had fully abided by the terms of that order. The applicant's compliance with the interim bail conditions was emphasized, and there were no complaints regarding his adherence to these conditions.

3. Constructive Custody During the Pendency of the Bail Application:
The court discussed the concept of "constructive custody" and referred to the Supreme Court's decision in Sunil Fulchand Shah Vs Union of India, which differentiates between bail and parole. It was observed that even though the applicant was released on interim bail, he remained under the constructive control of the court. The court cited the Supreme Court's decision in Niranjan Singh & Another Vs. Prabhakar Rajaram Kharote & Others, which clarified that a person is in custody if he is under the control of the court or has submitted to its jurisdiction. The applicant's status as a person in judicial custody was maintained constructively, despite the lapse of the 45-day interim bail period.

4. Comparison with Co-accused's Bail Status:
The court noted that the co-accused, Pradeep @ Bhuru, had been granted regular bail, which was a significant factor in considering the applicant's bail plea. The court found that the applicant was entitled to bail, given the similar role ascribed to him and the co-accused's bail status.

5. Legal Precedents and Interpretation of Custody under Section 439 Cr.P.C.:
The court referred to multiple legal precedents, including decisions in Nirmal Jeet Kaur Vs State of M.P. & Another, Sunita Devi Vs State of Bihar & Another, and Niranjan Singh & Another Vs. Prabhakar Rajaram Kharote & Others. The court distinguished the present case from Nirmal Jeet Kaur, where the accused had not surrendered before applying for bail, and emphasized that the applicant in this case had been in judicial custody when the interim bail was granted. The court also referred to the Division Bench decision in Haji Peer Bux Vs State of Uttar Pradesh, which followed the Supreme Court's view in Niranjan Singh.

Conclusion:
The court concluded that the applicant's bail application was valid and maintainable under Section 439 Cr.P.C. The applicant's compliance with interim bail conditions and the concept of constructive custody were upheld. The court granted the applicant regular bail, considering the co-accused's bail status and relevant legal precedents. The applicant was directed to furnish a fresh personal bond and two sureties, with specific conditions to ensure cooperation in the trial and prevent any criminal activity. The court also emphasized the need for expeditious trial proceedings.