1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 847 OF 2010 Prabhu Singh Narendra Singh Walia ...Petitioner (Orig.Accused No.4) vs. State of Maharashtra & Anr. ...Respondents Mr.S.V. Marwadi i/b. M/s.M.D. Mali & Co. for the Petitioner. Mrs.N.V. Newton, APP for the State. Mr.S.A. Jabhar and Mr.K.C. Pandey and Mr.Tanvir Shaikh for Respondent No.2. CORAM : V.M. KANADE, J. DATED : MAY 7, 2010 P.C. :- 1 By this petition which is filed under Article 227 of the Constitution of India and under Section 482 of the Cr.P.C., the petitioner who is original accused no.4 is challenging the order dated 5th March, 2010 passed by the Additional Chief 2 Metropolitan Magistrate, 47th Court, Esplanade, Mumbai, in Bail Application No.50/BA/2010 in Case No.178/PW/2010. By the said order, the application for bail filed by the petitioner was rejected. Brief facts are as under :- 2 It is the case of the prosecution that the petitioner made false representation to the complainant  respondent no.2 herein that he is interested in purchasing cloth for him and in view of the said representation between 21st April, 2007 to 7th May, 2007, goods worth Rs.34,54,928/- were supplied and received by the petitioner. Part payment of Rs.9,50,000/- was made by the petitioner. However, cheques issued by one Vinay Choubal were returned unpaid. Respondent no.2 filed the complaint which was registered by the L.T. Marg Police Station on 21st April, 2008 vide C.R.No.112/2008 for the offences punishable under Sections 406, 420 read with Section 34 of the IPC. Accused No.1. Surendra Singh Walia - son of the petitioner and Ramesh Singh 3 were arrested on 22nd April, 2008 and ultimately they were granted bail on 29th April, 2008. Accused No.3 Vinay Choubal was also ultimately granted bail on 29th July, 2008. The petitioner applied for anticipatory bail in the Sessions Court and his application was allowed on 8th May, 2008. The Sessions Court, however, while granting anticipatory bail directed that the petitioner should within 15 days of filing of the charge sheet apply for regular bail. Respondent No.2 challenged this order by filing Criminal Application No.3650/2008 in this Court. During the pendency of this application, charge sheet came to be filed in the court of the Additional Chief Metropolitan Magistrate, 47th Court, Esplanade, Mumbai, on 16th February, 2010 and therefore, the said application filed by respondent no.2 for cancellation was dismissed by this Court on 8th March, 2010. 3 The petitioner, in the meantime, had filed an application to the learned Magistrate for regular 4 bail in view of the directions given by the Sessions Court. The learned Magistrate, however, dismissed the application filed by the petitioner for regular bail. 4 This Court dismissed the Criminal Application No.3650/2008 filed by respondent no.2 for cancellation of anticipatory bail by its order dated 8th March, 2010. This Court held that in view of charge sheet being filed by the prosecution, the validity of the impugned order dated 8th May, 2008 granting anticipatory bail to the petitioner had expired. The learned Single Judge (Coram : D.G. Karnik, J.) also observed that the application filed by the petitioner for regular bail before the Magistrate was rejected and therefore, disposed of the said criminal application. 5 Shri Marwadi, learned Counsel appearing on behalf of the petitioner invited my attention to the impugned order passed by the learned Magistrate. He 5 submitted that the learned Magistrate had rejected the application for regular bail in view of the pendency of the criminal application filed by respondent no.2 in this court for cancellation of bail. He submitted that respondent no.2 s Counsel had argued before the learned Magistrate that if the application for regular bail was granted by the learned Magistrate, he would be passing an illegal order. He invited my attention to the said submission of the respondent no.2 s Counsel which was recorded by the learned Magistrate. It was submitted that therefore, the order was liable to be quashed and set aside and the learned Magistrate may be directed to decide the application afresh, on merits and in accordance with law. 6 The learned Counsel for respondent no.2 vehemently opposed the submission made by the learned Counsel for the petitioner. He firstly submitted that the had not surrendered before the court and unless he was taken in custody, the 6 learned Magistrate could not have entertained the application under Section 437 of the Cr.P.C. He submitted that for the purpose of entertaining an application under Section 437 of the Cr.P.C. it was incumbent upon the accused to surrender to the police and only thereafter, the Magistrate could entertain the application. The learned Counsel for respondent no.2 has relied on the judgment of the Supreme Court in the case of Vaman Narain Ghiya vs. State of Rajasthan (2009 (1) Supreme 478) and more particularly, para 10 of the said judgment. 7 In rejoinder, Shri Marwadi, learned Counsel for the petitioner submitted that the law on the said point was quite well settled. He submitted that the Apex Court had held that accused would surrender before the court and custody in that context was physical control or at least, physical presence of the accused in court coupled with submission of the jurisdiction and orders of the court. He firstly, relied on the judgment of the Apex Court in the case 7 of Niranjan Singh and another vs. Prabhakar Rajaram Kharote and others, reported in AIR 1980 Supreme Court 785. He also relied on the judgment in the case of Nirmal Jeet Kaur vs. State of M.P. and another, reported in (2004) 7 Supreme Court Cases 558 and more particularly, para 15, 16 and 17. He also relied on the judgment of the Supreme Court in the case of Vaman Narain Ghiya vs. State of Rajasthan on which reliance is placed by respondent no.2. He submitted that in fact, in the said judgment the Supreme Court has relied upon the Niranjan Singh s case and has accepted the said ratio of the judgment. He submitted that the learned Counsel for the respondent no.2 had read para 10. He submitted that the said paragraph cannot be read in isolation. He then relied on the judgment of the learned Single Judge of this Court in the case of Kiran Vasant Achrekar vs. State of Maharashtra in Criminal Application No.3380/2004 with Criminal Application No.4006/2004. 8 8 I have heard both the learned Counsel at length. In my view, there is some substance in the submission made by the learned Counsel for the petitioner. In the present case, anticipatory bail was granted to the petitioner by the Sessions Court. The Sessions Court, however, directed the petitioner to apply for regular bail after filing of the charge sheet. Accordingly, the petitioner had filed an application for regular bail before the learned Magistrate. At that time, it is an admitted position that the application filed by respondent no.2, for cancellation of anticipatory bail granted by the Sessions Court, was pending in this court vide Application No.3650/2008. During the pendency of the application, the learned Magistrate was pleased to decide the application for regular bail. It would be relevant to note the submissions which were made by the learned Counsel appearing on behalf of the complainant. In para 6 of the order of the learned Magistrate, the submissions made by the complainant 9 which are as under :- The Ld. Advocate for the intervener on behalf of the complainant vehemently argued that the said order dated 8/5/2008 in the anticipatory bail application no. 568/2008 passed by the sessions court in favour of the accused no.4 is under challenge before the Hon ble High Court in Criminal Application No.3650/2008 and in case of sub judice the matter if this Court inclined to grant the relief in favour of the accused, then it will effect to pass any illegal order. Secondly, the learned Magistrate also noted the further submission on behalf of the complainant as under :- It is also submitted by the intervener that they have moved an application dated 20/2/2010 and pointed out certain lapses left by the investigating officer in the interrogation and deliberately left to loopholes in this case. Thereby he applied on 20/2/2010 for reinvestigation under section 173(8) of Cr.P.C. That application is still awaiting for the say of other side 10 and application itself yet to be decided. 9 The learned Magistrate, thereafter, dismissed the application for bail filed by the petitioner by observing as under :- In short, I found that the accused is not coming with clean hand and the accused no.3 is also not appeared sue motto to secure his presence after filing the chargesheet. The matter is sub judice against the judgment and order dated 8/5/2008 passed by the Hon ble Sessions court in the Anticipatory Bail Application No.568/2008. In such circumstances, I pass the following order :- The bail application moved by the Accused No.4 Prabhusingh Walia, is hereby rejected. SD/- Date  5/3/2010 (V.W. Sonawane) 10 Perusal of the said observation made by the learned Magistrate, in my view, therefore, clearly 11 reveal that the learned Magistrate was influenced by the fact that the order granting anticipatory bail passed by the Sessions Court was challenged by the complainant in this court and the same is pending. In my view, therefore, there is malicious application on the part of the Magistrate by passing the said order. Mere pendency of an application in this court could not have been ground for rejecting the application for regular bail. The learned Magistrate, therefore, in my view, has clearly committed an error of law which is apparent on the face of record. The order of the Magistrate, therefore, is required to be quashed and set aside and the matter has to be remanded back to the learned Magistrate for deciding the application afresh, in accordance with law. 11 So far as the submission of the learned Counsel for the complainant that the petitioner had not surrendered before the police and the application could not have been entertained by the 12 learned Magistrate, cannot be accepted. It is a well settled position in law that an accused can either surrender before the police or before the court and submit to the jurisdiction of the court. The said position is quite well settled. The Apex Court in the case of Niranjan Singh (supra), in paras 7 and 8 has made this position very clear. Paras 7 and 8 read as under :- 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 order 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 13 quibblings 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 dubieties 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. The ratio of this judgment is followed by the case of Nirmal Jeet Kaur (supra) and after noting the observations made by the Apex Court in Niranjan Singh s case (supra) with approver, The Apex Court has made the following observations in 14 paragraphs 16 and 17. 16. The crucial question is when is a person in custody, within the meaning of Section 439 of the Criminal Procedure Code? 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 Section 439. The 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 dubieties are unfair evasions of the straightforwardness of the law. 17. Since the expression custody , though used in various provisions of the Code, including 15 Section 439, has not been defined in the Code, it has to be understood in the setting in which it is used and the provisions contained in Section 437 which relate to jurisdiction of the Magistrate to release an accused on bail under certain circumstances which can be characterised as in custody in a generic sense. The expression custody as used in Section 439, must be taken to be a compendious expression referring to the events on the happening of which the Magistrate can entertain a bail petition of an accused. Section 437 envisages, inter alia, that the Magistrate may release an accused on bail, if such accused appears before the Magistrate. There cannot be any doubt that such appearance before the Magistrate must be physical appearance and the consequential surrender to the jurisdiction of the Court of the Magistrate. 12 The Apex Court again reiterated the said view in Vaman Narain Ghiya s case (supra). The learned Counsel appearing on behalf of respondent no.2 relied on para 10 of the judgment in support of the submission that unless the accused surrenders to the police, he cannot make an application under Section 447. Para 10 reads as under :- 16 After analyzing the crucial question that when a person is in custody, within the meaning of Section 439 of the Code, it was held in Nirmal Jeet Kaur s case (supra) and Sunita Devi s case (supra) that for making an application under Section 439 the fundamental requirement is that the accused should be in custody. As observed in Salauddin s case (supra) the protection in terms of Section 438 is for a limited duration during which the regular Court has to be moved for bail. Obviously, such bail is bail in terms of Section 439 of the Code, mandating the applicant to be in custody. Otherwise, the distinction between orders under Sections 438 and 439 shall be rendered meaningless and redundant. 13 In my view, the submission made by the learned Counsel for respondent no.2 cannot be accepted. The particular para of the judgment cannot be read in isolation. In fact, in paras 8 and 9, the Apex Court has reiterated and followed the decision in Niranjan Singh (supra) and Nirmal Jeet Kaur (supra) cases and in para 10 has observed that after analyzing the crucial question as to when the person 17 was in custody, what was held in Nirmal Jeet Kaur (supra) case has been mentioned. In view of the judgment of the Apex Court, therefore, that the petitioner remained present before the Magistrate, he had surrendered before the Magistrate and had submitted to his jurisdiction and therefore, it cannot be said that the learned Magistrate could not have entertained his application for bail under Section 447. 14 The learned Counsel for respondent no.2 has also strenuously urged that in para 9 of the application, the petitioner had specifically contended that he was not challenging the order refusing the bail in this petition and that he was challenging the observation made by the learned Magistrate. In my view, the said submission is also without any substance. The petitioner in para 6 and in the prayer clause has clearly mentioned that he is challenging the order passed by the learned Magistrate and seeking an order under Article 227 of 18 the Constitution of India and under Section 482 of the Cr.P.C. for quashing and setting aside the order of the learned Magistrate. 15 In the result, the writ petition is allowed. The impugned order passed by the learned Magistrate dated 5th March, 2010 is quashed and set aside. The matter is remanded back to the same court. The learned Magistrate shall decide the application of the petitioner for regular bail on merits and in accordance with law, expeditiously. 16 Writ Petition, accordingly, is disposed of. 17 The learned Counsel appearing on behalf of the petitioner submits that in the vacation, the learned Magistrate is on leave and the matter is kept on 11th June, 2010. It is submitted that the petitioner shall surrender before the Magistrate on 11th June, 2010 and apply for regular bail. 19 18 The petitioner is permitted to appear before the Magistrate on 11th June, 2010. (V.M. KANADE, J.)