1 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4258 OF 2010 WITH CRIMINAL APPLICATION NO.511 OF 2010 Mr. Ishan Vasant Deshmukh ..Applicant alias Prasad Vasant Kulkarni Age : 38 years, Occu : Service Residing at C-404, Pinnac Sadhiccha, Rambag colony, Paud road, Pune  400 038. Versus The State of Maharashtra ..Respondent (At the instance of Inspector of Police, Swargate Police Station, Pune) Mr.A.P.Mundargi, Senior Counsel with Mr.N.Mundargi, for the Applicant Mr.Nitin Pradhan with Mr.Subodh Desai, Mr.Manoj Mohite and Mrs.Vijayalaxmi Kulkarni i/b.Nanu Hormasjee & Co., Advocate, for the original Complainant/Intervener Mrs.P.P.Bhosale, APP, for the Respondent  State CORAM : R.C.CHAVAN, J. JUDGMENT RESERVED ON : 8TH OCTOBER, 2010 JUDGMENT PRONOUNCED ON : 18TH OCTOBER, 2010 2 JUDGMENT . Criminal Application No.4258 of 2010 is for bail by an accused in C.R.No.I-357 of 2009 for the offence punishable under Sections 417, 420, 465, 468, 471 and read with Section 34 of the Indian Penal Code, 1860 at Swargate Police Station, Pune registered upon complaint of M/s.ICICI Prudential Life Insurance Company Limited. Criminal Application No.511 of 2010 is for intervention by the first informant Company. 2. Applicant was licensed agent of the M/s.ICICI Prudential Life Insurance Company Limited. In 2008, applicant had introduced three clients from Doddanavar family for policies in respect of which annual premia were Rs. 1,50,00,000/-, Rs.10,00,000,00/- and Rs. 50,00,000/-. The applicant had received a hefty commission of Rs.80,85,000/- and gift of Rs. 2,69,99,695/- from complainant for introducing 3 these policies. He transferred Rs.3,00,00,000/- to the account of his wife. Complainant received a request to cancel policies of client Pravin Doddanavar and for refund of premium of Rs. 10,00,00,000/- on 25th October, 2008. On 6th November, 2008, applications from Doddanavars were received for conversion of their policies from one plan to another. On 14th December, 2008, clients complained that they had not requested for any such new policies and that instead of refunding Rs.12,00,00,000/-, in order to earn his commission, applicant had invested the amount in policies. The complainant Company refunded the entire amount to clients and then filed a report on which an offence was registered. 3. Applicant applied for and was granted anticipatory bail by the Additional Sessions Judge, Pune by his order dated 30th July, 2009. The State sought cancellation of this order by filing Criminal Application No.4356 of 2009. This 4 application was disposed of by an elaborate 22 page order dated 28th June, 2010, whereby the order passed by the Additional Sessions Judge was modified, limiting anticipatory bail till filing of charge sheet and permitting applicant to apply for regular bail before the concerned Court which is seized of the matter . 4. Charge sheet was filed on 24th August, 2010 before Judicial Magistrate First Class, Pune. The applicant applied to the Court of Sessions at Pune for regular bail upon filing of charge sheet. He also mentioned that he had a heart ailment which required him to be bailed out. The learned Additional Sessions Judge rejected this application on 13th September, 2010. The applicant was however not taken in custody. The applicant has, therefore, filed the present Criminal Application No.4258 of 2010 for bail under Section 439 of the Code of Criminal Procedure, 1978. 5 5. On behalf of intervenor, two objections have been raised to the tenability of this application. The first is that unless the applicant is in custody, he cannot apply for bail either under Section 437 or 439 of the Indian Penal Code. The second objection is that this Court, while disposing of the Criminal Application No.4356 of 2009 by order dated 28th June, 2009, had specifically directed that the present applicant shall apply for regular bail before the concerned Court which is seized of the matter, and that the concerned Court shall deal with such application for regular bail according to law. It was, therefore, submitted that the applicant ought to have approached the concerned Court which is seized of the matter. Consequently, an application should have been made before the Trial Magistrate and not before the Court of Sessions or even before this Court. 6 6. First, I would deal with the objection to the tenability of applicant on the ground that the applicant is not in custody and therefore, this application should not be entertained. The learned Counsel for intervenor relied on Judgments of the Supreme Court in SUNITA DEVI Versus STATE OF BIHAR AND ANOTHER, reported at (2005) 1 Supreme Court Cases 608, D. K. GANESH BABU Versus P.T.MANOKARAN AND OTHERS, reported at (2007) 4 Supreme Court Cases 434 and VAMAN NARAIN GHIYA Versus STATE OF RAJASTHAN, reported at (2009) 2 Supreme Court Cases 281. It was submitted that the Supreme Court has categorically ruled in these cases that an application for bail would not lie unless the applicant concerned is in custody. In SUNITA DEVI's case, the Supreme Court referred to provisions of Sections 438 and 439 of the Code of Criminal Procedure, 1978 and also referred to the Judgment of the Supreme Court in NIRANJAN SINGH AND ANOTHER Versus PRABHAKAR RAJARAM KHAROTE AND 7 OTHERS, reported at (1980) 2 Supreme Court Cases 559 and held in para 13 to 15 as under :- 13. In view of the clear language of Section 439 and in view of the decision of this Court in Niranjan Singh v. Prabhakar Rajaram Kharote there cannot be any doubt that unless a person is in custody, an application for bail under Section 439 of the Code would not be maintainable. The question when a person can be said to be in custody within the meaning of Section 439 of the Code came up for consideration before this Court in the aforesaid decision. 14. The crucial question is when is a person in custody, within the meaning of Section 439 of the 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 8 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. 15. Since the expression custody though used in various provisions of the Code, including 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. 9 7. In para 18 of the Judgment, the Court also referred to the question as to which Court ought to be moved. It was observed that an application under Section 439 of the Code of Criminal Procedure, 1978 must be made in a manner in accordance with law and the accused seeking remedy under Section 439 must ensure that it would be lawful for the Court to deal with this application. Thereafter, in para 20 to 23 of the order the Court held as under :- 20. For making an application under Section 439 the fundamental requirement is that the accused should be in custody. As observed in Salauddin case 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. 21. If the protective umbrella of Section 438 is extended beyond what was laid down in Salauddin case the result would be clear by 10 passing of what is mandated in Section 439 regarding custody. In other words, till the applicant avails remedies up to higher courts, the requirements of Section 439 become dead letter. No part of a statute can be rendered redundant in that manner. 22. These aspects were recently highlighted in Nirmal Jeet Kaur v. State of M.P. Therefore the order of the High Court granting unconditional protection is clearly untenable and is set aside. However, the petitioner is granted a month's time from today to apply for regular bail after surrendering to custody before the court concerned which shall deal with the application in accordance with law. We express no opinion about the merits of the case. 23. Respondent 2 would surrender to custody as required in law so that his application under Section 439 of the Code can be taken for disposal. 8. In D. K. GANESH BABU Versus P.T.MANOKARAN AND OTHERS, the Supreme Court again re-iterated the distinction between anticipatory bail and regular bail. It also quoted from Judgment in Salauddin Abdul Samad Shaikh Vs. State of 11 Maharashtra, reported at 1996(1)S.C.C.667 and K. L. Verma v. State, reported at (1998) 9 SCC 348. The observations in K. L. Verma's case to the following effect seem to have been highlighted by the Supreme Court. In other words, till the bail application is disposed of one way or the other the court may allow the accused to remain on anticipatory bail. To put it differently, anticipatory bail may be granted for a duration which may extend to the date on which the bail application is disposed of or even a few days thereafter to enable the accused persons to move the higher court, if they so desire. 9. In para 13 the Court re-iterated that in view of the clear language of the Section 439 and decision in NIRANJAN SINGH's case unless a person is in custody, an application under Section 439 would not be maintainable. 10. In VAMAN NARAIN GHIYA Versus STATE OF RAJASTHAN, reported at (2009) 2 Supreme Court 12 Cases 281. In para 11 of the Judgment the Court quoted extensively from previous Judgment in K. L. Verma's case. In para 13 the Court observed that in view of language of Section 439 and the Judgment in NIRANJAN SINGH's case there could be no doubt unless a person is in custody, an application under Section 439 would not be maintainable. 11. In PARVINDERJIT SINGH AND ANOTHER Versus STATE (UNION TERRITORY CHANDIGARH) AND ANOTHER, reported at (2008) 13 Supreme Court Cases 431 the Supreme Court re-iterated that there could be no doubt unless a person is in custody, an application under Section 439 would not be maintainable. 12. The learned Counsel for the applicant submitted that there could be no doubt that a person cannot apply for bail unless he had been 13 arrested or was in custody. However, the learned Counsel submitted that this does not imply that person must actually be arrested and should be in custody before he could apply for bail. He submitted that a person surrendering before the Court and seeking bail has been held to be a person in custody. He relied on Judgment of the Supreme Court in NIRANJAN SINGH AND ANOTHER Versus PRABHAKAR RAJARAM KHAROTE AND OTHERS, reported at (1980) 2 Supreme Court Cases 559 which has been referred to in all the Judgments on which the learned Counsel for the intervener  informant and the learned APP for the State place reliance. The observations of the Supreme Court in para 6 to 9 of the Judgment may be usefully reproduced as under :- 6. Here the respondents were accused of offences but were not in custody, argues the petitioner so no bail, since this basic condition of being in jail is not fulfilled. This submission has been rightly rejected by the courts below. We agree that, in one view, an outlaw cannot ask for 14 the benefit of law and he who flees justice cannot claim justice. But here the position is different. The accused were not absconding but had appeared and surrendered before the Sessions Judge. Judicial jurisdiction arises only when persons are already in custody and seek the process of the court to be enlarged. We agree that no person accused of an offence can move the court for bail under Section 439 CrPC unless he is in custody. 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 having offered himself to the court's jurisdiction and submitted to its orders by physical presence. No lexical dextercity 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 15 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. 9. He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets 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 the present case, the police officers applied for bail before a Magistrate who refused bail and still the accused, without surrendering before the Magistrate, obtained an order for stay to move the Sessions Court. This direction of the Magistrate 16 was wholly irregular and maybe, enabled the accused persons to circumvent the principle of Section 439 CrPC. We might have taken a serious view of such a course, indifferent to mandatory provisions, by the subordinate magistracy but for the fact that in the present case the accused made up for it by surrender before the Sessions Court. Thus, the Sessions Court acquired jurisdiction to consider the bail application. It could have refused bail and remanded the accused to custody, but, in the circumstances and for the reasons mentioned by it, exercised its jurisdiction in favour of grant of bail. The High Court added to the conditions subject to which bail was to be granted and mentioned that the accused had submitted to the custody of the court. We, therefore, do not proceed to upset the order on this ground. Had the circumstances been different we would have demolished the order for bail. We may frankly state that had we been left to overselves we might not have granted bail but, sitting under Article 136, do not feel that we should interfere with a discretion exercised by the two courts below. 13. The learned Counsel, therefore, submitted that when a person surrenders before the Court and 17 submits to its directions, the person could be said to be in judicial custody. The learned Counsel pointed out that this has been followed by our High Court in Ritesh Prem Gayal & anr. Versus Senior Inspector of Police & anr, reported at 2008(2) Bom.C.R.(Cri.)128. Similar view was taken in Judgment in CRIMINAL APPLICATION NO.3380 OF 2004 in Kiran Vasant Achrekar versus State of Maharashtra decided on 12th October, 2004. 14. I have carefully considered the arguments advanced by the learned Counsel for the parties. 15. It may be seen that the recent Judgments of the Supreme Courts on which the learned Counsel for the informant  intervener places reliance refer to the observations of the Supreme Court in NIRANJAN SINGH's case. It is not that subsequent Benches take any different view from the one taken in NIRANJAN SINGH's case. They follow the law 18 laid down in NIRANJAN SINGH. Hence, it will not be appropriate to read observations in NIRANJAN SINGH's case selectively. There can be no doubt as held in para 6 of the Judgment in NIRANJAN SINGH's case that no person accused of an offence can move for bail under Section 439 of the Code of Criminal Procedure, 1978 unless he is in custody. But it is also clarified in para 9 that when a person surrenders before the Court and submits to its directions, he is said to be in judicial custody and therefore, an application for bail would lie. Therefore, as far as challenge to the tenability of the application of this Court is concerned, it has to be rejected. The applicant, by submitting himself to the jurisdiction of this Court must be taken to have submitted himself to the custody of the Court. In fact, the learned Sessions Judge while rejecting the application should have seen this and should have remanded the applicant to custody, if he felt that the 19 applicant was not entitled to bail. However, it is worthy of note that the learned Sessions Judge has not rejected the application for bail on the ground that the applicant was not in custody but has rejected it on merits. Therefore, if he was rejecting the application for bail, he could have taken the applicant in custody which could have obviated this debate. 16. Next, the learned Counsel for the intervener and the learned APP object to the tenability of the application on the ground that the applicant had been directed by this Court to apply for regular bail before the concerned Court which was seized of the matter, and since the Court which is seized of the matter is that of Judicial Magistrate First Class, Pune, it was incumbent upon the applicant to apply before that Court for bail. He submitted that it was impermissible, in the face of this judicial direction, for the applicant to approach the Court 20 of Sessions and now this Court. 17. The learned Counsel for the applicant submitted that this Court had directed the applicant to apply for regular bail before the concerned Court. He submitted that since the offence which the applicant is alleged to have committed is one punishable under Section 467 of the Indian Penal Code for which punishment of imprisonment for life is prescribed, a Judicial Magistrate First Class would not at all have been entitled to entertain an application for bail. He submitted that provisions of Section 437 of the Code of Criminal Procedure, 1973 enable a Magistrate to grant bail only in cases other than those in which there are reasonable grounds for believing that the person is guilty of an offence punishable with death or imprisonment for life. He submitted that this Court in The State of Maharashtra Versus Kaushar Yasin Qureshi and 21 another, reported at 1996(5) Bom.C.R.473 had so held. In that case, however, the question was of offence punishable under Section 302 of the Indian Penal Code, for which minimum punishment itself is imprisonment for life. 18. The learned Counsel for the applicant next submitted that in State of Maharashtra Versus Rajkumar Kunda Swami, reported at 2002(Supp. 2)Bom.C.R.79, this Court had again held that a Magistrate was not entitled to grant bail in offence punishable with imprisonment for life. In that case, the offence complained was one punishable under Section 409 of the Indian Penal Code. While so holding the learned Single Judge had placed reliance on the Judgment in The State of Maharashtra Versus Kaushar Yasin Qureshi and another, reported at 1996(5) Bom.C.R.473. The observations of the Court in para 21 of the Judgment may be usefully reproduced as under :- 22 21. From the facts and circumstances of this case, it is crystal clear that there are reasonable grounds to believe that respondent-accused is involved in the offence specially offence punishable under section 409 of the I.P.C. and apart from that the fact that whether a prima facie case is made out. Some of the factors which are to be borne in mind in deciding the question of grant of bail are the gravity/magnitude of the offence and whether there is any likelihood of the accused person absconding. In the instant case, both the considerations militate against the respondent-accused. 19. The learned Counsel for the applicant therefore, submitted that since the Magistrate does not have jurisdiction to entertain an application for bail, his client was justified in approaching the Court of Sessions, and now this Court, for grant of bail, since irrespective of what orders were passed by this Court in Criminal Application No.4356 of 2009, the applicant could not have been ordered to seek exercise by a Magistrate of jurisdiction which did not vest in 23 him. He submitted that the jurisdiction cannot be conferred by judicial orders, even if it were to be presumed that this Court had directed the applicant to approach the Court of Judicial Magistrate First Class. The learned Counsel submitted that considering the lack of jurisdiction in the Magistrate to entertain application for bail, since the offence alleged is punishable with imprisonment for life, the reference to concerned Court which was seized of the matter in the order in Criminal Application No.4356 of 2009, must be read as reference to the Court of Sessions which had the jurisdiction to entertain bail application. 20. The learned Counsel for the intervener submitted that another learned Single Judge of this Court had held in Ambarish Rangshahi Patnigere Vs. State of Maharashtra, reported at 2010 ALL MR (Cri) 2775 that a Magistrate would have the jurisdiction to grant bail even in 24 offences punishable under Sections 467 and 409 of the Indian Penal Code, 1860 though the offences are punishable with imprisonment for life or imprisonment for ten years. While deciding this case, the Judgments of the learned Single Judge in The State of Maharashtra Versus Kaushar Yasin Qureshi and another and State of Maharashtra Versus Rajkumar Kunda Swami had not been brought to the notice of the learned Single Judge. After considering the relevant provisions the learned Judge observed in para 17 and 18 as under :- 17. It may be noted here that the learned Counsel for intervener contended that the Magistrate did not have jurisdiction to grant bail because the offences under Section 467 and 409, IPC, carry punishment which may be life imprisonment. According to the learned Counsel, if the offence is punishable with sentence of death or