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2020 (1) TMI 1534 - HC - Indian LawsSeeking 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.
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