In the High Court of Punjab and Haryana at Chandigarh ….. Criminal Misc. No.M-35149 of 2009 ….. Date of decision:12.5.2010 Shivdev Kaur and another ….Petitioners v. State of Punjab ….Respondent …. Present: Mr. G.S. Sandhawalia, Advocate for the petitioners. Mr. V.P.S. Sidhu, Assistant Advocate General, Punjab for the Respondent-State. …… S.S. Saron, J. Heard learned counsel for the parties. The petitioners seek anticipatory bail in case FIR No.203 registered against them on 20.6.2009 for the offences under Sections 420 and 120-B Indian Penal Code (`IPC’ – for short) at Police Station Division No.4, Jalandhar. A further prayer has been made for quashing the orders dated 31.10.2009 (Annexure-P.11) whereby the prayer for regular bail has been declined and also for quashing the order dated 27.11.2009 (Annexure- P.13) whereby the application for extension of the anticipatory bail for interim period of two months from 18.08.2009 has been declined. The petitioners in the case registered against them were granted anticipatory bail by the learned Additional Sessions Judge, Jalandhar vide order dated 18.8.2009 (Annexure-P.9). The said order was to remain Criminal Misc. No.M-35149 of 2009 [2] operative for a period of two months from the date of the order and the petitioners were to apply for regular bail during the said period. Vide application dated 16.10.2009 (Annexure-P.10) the petitioners applied for regular bail. The learned Additional Sessions Judge, Jalandhar held that the petitioners had not surrendered and were not in judicial custody. Accordingly, their application for bail has been declined by order dated 31.10.2009 (Annexure-P.11). The petitioners then filed an application (Annexure-P.12) for extension of time for seeking regular bail, which has been declined vide order dated 27.11.2009 (Annexure-P.13). The petitioners have thus filed the present petition seeking anticipatory bail. The petitioner No.1 Shivdev Kaur is a lady aged 66 years and petitioner No.2 Mohinder Singh Uppal is her husband and is aged 76 years. They had on 10.6.1988 entered into an agreement with the complainant Gurbax Kaur to purchase her land measuring 8 Acres 15 Marlas situated in Village Nandanpur, Tehsil and District Jalandhar, which was allotted to her (complainant-Gurbax Kaur) being a war widow. In pursuance of the said agreement dated 10.6.1988 Gurbax Kaur gave an irrevocable power of attorney dated 10.6.1988 registered with the Sub- Registrar in favour of Mohinder Singh Uppal (petitioner No.2). The power of attorney was given by Gurbax Kaur so that the petitioners could deal with the property in dispute in whatever manner deemed fit. The allotment of the land was made in favour of the complainant Gurbax Kaur which was confirmed by the Settlement Officer. A formal registered deed of allotment was executed on 22.6.1989 and possession of the land was delivered to the petitioners. On 24.8.1991, Mohinder Singh Uppal (petitioner No.2) filed a Criminal Misc. No.M-35149 of 2009 [3] suit as attorney of Smt. Gurbax Kaur against the State of Punjab through Secretary, Department of Revenue (Rehabilitation), Chief Sales Commissioner-cum-Deputy Commissioner, Jalandhar and the Tehsildar (Sales) Jalandhar seeking permanent injunction restraining the defendants therein from interfering in the possession of the suit property since the sale certificate had been issued and entries made in the revenue record. A declaration was also sought to the effect that the sale and sale certificates issued were valid, final and cannot be interfered with by the defendants and neither can the same be cancelled. The suit filed by the plaintiff Gurbax Kaur (complainant) through her attorney Mohinder Singh Uppal (petitioner No.2) was decreed in her favour on 3.4.1997 (Annexure-P.3). In pursuance of the sale agreement three separate sale deeds were executed in favour of Shivdev Kaur (petitioner No.1) on 12.7.2007, 5.10.2007 and 10.10.2007 for 7 Acres of land out of land measuring 8 Acres and 15 Marlas. In between the price of the land when the agreement to sell dated 10.6.1988 was executed and 2007 when the sale deeds were executed had increased substantially. Gurbax Kaur, it is alleged, on account of the increase in prices became greedy and on 9.1.2008 cancelled the irrevocable power of attorney dated 10.6.1988. She started interfering in the possession of the property of the petitioners. The petitioner No.1, therefore, filed a civil suit on 5.3.2008 for specific performance of the agreement to sell dated 10.6.1988 for the balance land measuring 1 Acre 15 Marlas out of 8 Acres 15 Marlas and for permanent injunction. Gurbax Kaur was cross-examined in the civil suit and her cross-examination as recorded on 16.12.2008 (Annexure-P.4) has been placed on record. The suit of petitioner No.1 was Criminal Misc. No.M-35149 of 2009 [4] decreed in her favour on 17.1.2009 (Annexure-P.5). In pursuance of the decree, sale deed was executed on 5.5.2009 through the Court in her favour. The complainant Gurbax Kaur then got FIR (Annexure-P.6) registered against the petitioners alleging that blank papers had been got signed by her Advocate and that petitioner No.2 had got some false reports and got the land allotted in the name of his wife. Therefore, fraud had been played. The petitioners as already noticed applied for anticipatory bail which was allowed vide order dated 18.8.2009 (Annexure-P.9) for a period of two months from the date of the order. The petitioners were granted anticipatory bail with the condition that they furnish bail bonds to the tune of Rs.10,000/- with one surety of the like amount to the satisfaction of the Arresting Officer. Further conditions were imposed that they would make themselves available and would not influence the prosecution witnesses; besides, would not leave the country without prior permission of the Court. The order was to remain operative for two months. During the said period the petitioners were to apply for regular bail. The petitioners submitted their bail bonds before the Investigating Officer and they joined the investigation. Thereafter, an application was filed for admitting them to regular bail. The learned Additional Sessions Judge, Jalandhar vide order dated 31.10.2009 (Annexure-P.11) declined regular bail by observing that the petitioners had not surrendered and were not in judicial custody for the purpose of regular bail. In the application for bail, it was in fact mentioned that they had submitted bail bonds. The bail bonds actually had been submitted before the Police, however, in the application that was filed, it was wrongly mentioned that the bail bonds had been filed before the Court. Criminal Misc. No.M-35149 of 2009 [5] According to the petitioner, the averment that the bail bonds were furnished in Court was a typing mistake and, in fact, the petitioners had furnished bail bonds before the Police. The affidavit that was filed in support of the bail application, it is submitted, was to the extent that there was no other bail application in any Court and the bail application filed was the first application. The learned Additional Sessions Judge in his order dated 31.10.2009 (Annexure-P.11), however, observed that the petitioners had further aggravated their position by submitting in their application for bail that consequent to the passing of the order they had surrendered before the Court and furnished requisite bail bonds. It was observed that the petitioners had wrongly stated so in their application and they had failed to show as to in which Court they had surrendered and furnished their bail bonds. In view of the wrong averments in the bail application and the fact that they had not surrendered and were not in judicial custody, the bail application was dismissed. It may, however, be noticed that the petitioners have stated that wrong averments were inadvertently made in their application for bail and in fact they had surrendered before the Police and furnished their bail bonds. There is no reason to doubt the said stand of the petitioners. The observations of the learned Additional Sessions Judge that the petitioners were not in judicial custody and, therefore, not entitled to bail are, however, not correct. After an interim protection is given on an application seeking pre-arrest bail, the accused/petitioners are not necessarily to be confined in judicial custody for the purposes of consideration of their regular bail. In Niranjan Singh and another v. Prabhakar Rajaram Kharote, AIR 1980 SC 785, it was held that where the Criminal Misc. No.M-35149 of 2009 [6] accused had appeared and surrendered before the Sessions Judge, the Judge would have jurisdiction to consider the bail application as the accused would be considered to have been in custody within the meaning of Section 439 of the Code of Criminal Procedure. It was observed that custody in context of Section 439 is physical control or at least physical presence of the accused in Court coupled with submission to the jurisdiction and orders of the Court. A person can be in custody not merely when the Police arrest him, produced him before a Magistrate and get 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 State of Haryana v. Dinesh Kumar, 2008 (1) RCR (Cr.) 725 (SC), it was held that a person can be stated to be in judicial custody when he surrenders before the Court and submits to its directions. Submission to the custody by words of mouth or action by a person is sufficient. It was further held that when a person who is not in custody and approaches the Police Officers and provides information which leads to discovery of a fact which could be used against him it would be deemed that he had surrendered to the authority of the investigating agency. Reliance in this regard was placed on the case; State of U.P. v. Deomen, AIR 1960 SC 1125 wherein it was observed that submission to the custody by words of mouth or action by a person is sufficient. A person directly giving a Police Officer by word of mouth information which may be used as evidence against him may be deemed to have submitted himself to the custody of the Police Officer. In the present case, the learned State counsel, on instructions from HC Kamaljeet Singh, Police Station, Division No.4, Jalandhar, has Criminal Misc. No.M-35149 of 2009 [7] submitted that the custody of the petitioners is not required for the purposes of investigation. Therefore, the observations of the learned Additional Sessions Judge that the petitioners had not surrendered and were not in judicial custody for the purpose of consideration of regular bail in the facts and circumstances would not mean that the petitioner had not surrendered. This, however, would not mean that it is not the requirement to surrender to the custody of the Court when an application for grant of bail in terms of Section 439 Cr.P.C. is being considered. An accused in such a case must be present and subject himself to the jurisdiction of the Court. It is in the circumstances of the present case that the mere non-submission before the Court would not disentitle the petitioners for the grant of bail as they had admittedly joined the investigation. The order dated 31.10.2009 (Annexure- P.11) passed by the learned Additional Sessions Judge, Jalandhar is, therefore, not sustainable. It may also be noticed that after the passing of the order dated 31.10.2009 (Annexure-P.11) by the learned Additional Sessions Judge, Jalandhar whereby application for regular bail had been declined, the petitioners filed an application dated 4.11.2009 (Annexure- P.12) for extension of time for seeking regular bail from the learned trial Court. The said application has been declined vide order dated 27.11.2009 (Annexure-P.13). It was held that as the petitioners had not complied with the earlier directions in terms of the order dated 18.8.2009 (Annnexure-P.9) granting anticipatory bail whereby it was specifically ordered to move for regular bail. In fact, the Police does not need the custody of the petitioners for the purposes of investigation, inasmuch as, it has been stated by the Criminal Misc. No.M-35149 of 2009 [8] learned State counsel on instructions that the custody of the petitioners is not required for the purposes of investigation. One of the petitioners is a lady and the other an elderly person aged 76 years. There is no ground for holding that they are likely to abscond or otherwise misuse their liberty while on bail. The case even otherwise is based on documentary evidence. As such, there seems no justification to require them to first submit to custody, remain imprisoned for some days and then apply for bail. In the facts and circumstances, the petitioners are entitled to the grant of pre-arrest bail and the order dated 27.11.2009 (Annexure-P.13) whereby the application for extension of bail has been declined would not come in the way for the grant of pre-arrest bail by this Court. Accordingly, the criminal miscellaneous petition is allowed and the interim bail granted on 11.12.2009 is made absolute which shall enure till the filing of the challan before the trial Court. May 12, 2010. (S.S. Saron) *sonia/hsp* Judge