IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1397 OF 2009 Krushna Guruswami Naidu ...Applicant Vs. The State of Maharashtra ... Respondent --- Shri S.R. Chitnis, Senior Counsel i/b. Smt V.R. Raje for Applicant Shri S.R. Shinde, APP for State ---- CORAM: V.M. KANADE J. DATED 25TH MARCH, 2009 P.C. 1. This is an application for bail. 2. The Applicant is a practicing advocate, practicing in the Court at Chittoor, Andhra Pradesh. The Applicant was arrested in connection with an offence, which is registered with Loni-Kalbhor Police Station dated 13th March, 2009 for the offence punishable under sections 363 and 364 A r/w. 34 of the Indian Penal Code. In the said complaint, the Complainant alleged that his son was abducted by some unknown persons and he was taken to Bangalore. 3. The prosecution case is that the present Applicant had taken the abducted son of the Complainant to the Court premises in Bangalore for the purpose of holding settlement talks and at that time, he was arrested on the spot by the police. 4. The learned Senior Counsel for the Applicant submits that the prosecution case so far as the present Applicant is concerned, is incorrect and he was arrested from the street and no arrest panchnama has been prepared and he was, thereafter produced before the Court and, thereafter remanded to the police custody. He submitted that no panchanama was made and, therefore, the allegation of the prosecution that the Applicant was involved in the abduction is incorrect. 5. An affidavit has been filed by the daughter of the Applicant in which she stated that the Applicant's family members were not informed of the arrest of their father on 16.3.2009. 6. The learned APP for the State was asked to get the panchnama. He clearly made a statement that no panchnama has been made when the Applicant was arrested. 7. The Applicant is in police custody since last 10 days. It is submitted that on the basis of the statement of one of the co-accused, the present allegation has been made against the Applicant and there is no material on record to show that the Applicant is involved in the offences of abduction. 8. Perusal of the remand application filed by the Bangalore Police indicates that the Applicant has been arrested at the Post Office Road at 6.30 p.m. on 16.3.2009 whereas the remand application has been filed in the Pune Court shows that the Applicant was arrested in the Court premises while settlement was in progress. Admittedly, no arrest panchnama has been made at the time of arrest of the Applicant. The arrest form shows that the signatures of two witnesses were obtained. There is still discrepancy in the statement made in the remand application in the Bangalore Court and also the remand application filed in the Pune Court about the place of arrest. So far as the signatures of two witnesses are concerned on the arrest form, it is strange that the said witnesses are from the Pune and the arrest was made at Bangalore. It is strange that the signatures on the arrest form were obtained at Pune from Pune witnesses. The Applicant is practicing advocate in Chitoor, Andhra Pradesh since last 30 years and he was public prosecutor in the said Court. In my view, continued detention of the Applicant,therefore, under these circumstances, is not necessary since there is no material has been found against him. The only material is the statement of the co- accused, who stated that the Applicant was holding settlement talks between the parties in the Bangalore Court. The Applicant deserves to be released on bail. 9. The Applicant be released on bail in a sum or Rs.20,000/- with one or two sureties in the like amount. The Applicant, initially furnish cash bail and within two weeks, shall furnish the sureties as directed by this Court. The Applicant shall co-operate with the police. The Applicant shall report to the concerned police station, as and when called. 10. The learned Magistrate, Pune shall act on the authenticated copy of the order and fax of the Applicant's advocate and that the same may be acted upon. 11. The learned Counsel for the Applicant has also canvassed one other submission that the Applicant has filed this application directly in this Court because his experience of the past is that when the application is filed under section 439 of the Criminal Procedure Code in the Sessions Court after an accused is remanded to police custody, such application is not entertained by the Sessions Court on misconception that such an application for bail is not maintainable. The learned Senior Counsel for the Applicant further submitted that, therefore, the Applicant has no other option but to file this application for bail under section 439 of the Criminal Procedure Code in this Court directly. It is submitted that though the Applicant was practicing advocate and public prosecutor in the Chitoor Court, Andhra Pradesh for last 30 years, he was illegally detained in this matter. He submitted that, therefore, it has been clarified that such applications which are filed after police remand is granted by the Magistrate are maintainable in the Sessions Court under section 439. 12. In my view, this question is no longer res-integre and the Apex Court in several cases has held that the power of the Sessions Court and the High Court will not be restricted or limited in any manner as is evident from provisions of section 439 of the Criminal Procedure Code and, therefore, even if police remand has been granted by the Magistrate Court, during this period also an application under section 439 is maintainable in the Sessions Court. The Apex Court in the case of Niranjan Singh and Another vs. Prabhakar Rajaram Kharote and others reported in (1980) 2 Supreme Court Cases 559 has observed as under: “7. When is a person in custody, within the meaning of Section 439 Cr.PC? 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 of Section 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblins 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 Section 439, (we are not, be it noted, dealing with anticipatory bail under section 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.” It is, therefore, evident that the Sessions Court cannot reject such applications which are filed on the ground that they are not maintainable. It is quite another thing for the Court to consider the said application and to see that such an application should be entertained or not. Whether bail is granted or not at this stage. But the Sessions Court certainly cannot say that the said application is not maintainable. The Constitutional Bench of the Apex Court in the case of Shri Gurbaksh Singh Sibbia And Others vs. State of Punjab reported in (1980) 2 Supreme Court Cases 565 has made certain observation in respect of power of Court under section 439. Though the Constitutional Bench of the Supreme Court was considering the power of the Court under section 438 to grant anticipatory bail, the said observation has been made only after taking into consideration the observation that those powers are also relevant. In paragraph 22, it is observed that; “These sections with the power to grant or refuse bail to a person who is in the custody of the police and that is the ordinary situation in which bail is generally applied for.” It is expected from the Sessions Court that if such an application is filed under section 439, even if there is an order of remand, it should be entertained and considered on merits and in accordance with law. Application is, accordingly, disposed of. V.M. KANADE J.