1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3 of 2008 i) Dr.Sanjivani R.Kale ii) Ramkrishna Madhukar Kale .. Applicants versus State of Maharashtra .. Respondent ... Mr.Pratap Patil for the applicant. Mr.K.V. Saste APP for the State. CORAM : D.G.KARNIK, J DATED : 14th January 2008 P.C.: 1. This application for bail under section 439 of the Code of Criminal Procedure is filed by the applicants in connection with the crime registered with Karad City police station under C.R. No.152 of 2007 for an offence punishable u/s.498-A and sec.304B 2 r/w sec.34 of the IPC. 2. Deceased Rajashri was married to Dayanand Kale who is the real brother of the applicant no.2. Applicant no.1 is the wife of applicant no.2. Previously, the applicants had applied for anticipatory bail and the same was granted. All other accused except Dayanand, the husband of the deceased were also granted anticipatory bail. 3. After the charge-sheet was filed, the applicants applied for regular bail before the Sessions Court, However, the application was rejected on the ground that anticipatory bail was not limited in period of time and hence it was not necessary to apply for bail. The applicants thereafter filed a second application for bail before the Sessions Court which has been rejected by the Sessions Court on the ground that the applicants had not surrendered before the Magistrate before applying for the second bail. During the pendency of the second application, the applicants have moved this court for bail by disclosing the fact of the pendency of the second bail application in the Sessions court. Since that application has been rejected there can be no objection for consideration of this application by this court. 3 4. The learned Sessions Judge has rejected the second bail application on the ground that the applicants had not surrendered before applying for bail. The learned Sessions Judge has held that since the applicants are not in custody, they are not entitled to bail. 5. It is not disputed that applicants had appeared before the Sessions Court at the hearing of their application for bail. Relying on the decision of a Supreme Court in Niranjan Singh & Anr. Vs. Prabhakar Rajaram Kharote & Ors. reported in 1980 SCC (Cri.) 508, the counsel for the applicant submitted that as the applicants were preent in the court, they were entitled to apply for bail though they were not in custody. Therein the Supreme Court has held: 7. "When is a person in custody, within the meaning of Section 439 CrPC? 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 4 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. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory 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. 5 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 thus clear that when the accused appears before the court he is under control of the court and is entitled to apply for the bail. The learned Sessions Judge was therefore not right in rejecting the application for bail on the ground that applicants who were accused in the case had not surrendered before the Judicial Magistrate. 6. In the present case, the applicants were granted anticipatory bail. Their other brother and wife have also been granted regular bail. The husband of the deceased has also been granted bail. In the circumstances, I see no reason to refuse bail to the applicants. Hence, application is allowed. 7. Applicants are granted bail on each of them executing personal bond of Rs.30,000/- with two 6 sureties of Rs.15,000/- each. The applicants are granted one weeks time for appearing before the concerned court for executing the bond and furnishing sureties. 8. Bail shall be subject to the condition that the applicant shall not make any inducement or threats to any of the prosecution witnesses nor shall tamper with the prosecution evidence in any manner. (D.G. KARNIK, J)