IN THE CUSTODY OF LAW: WITHERING JURISDICTION OF A MAGISTRATE

Introduction

THE FULCRUM of error committed by the Supreme Court in Sundeep Kumar Bafna v. State of Maharashtra1 (“Bafna”) rests on the following quote from the judgment:

“…The regimes regulating the powers of the Magistrate on the one hand and the two superior Courts are decidedly and intentionally not identical, but vitally and drastically dissimilar…”²

The error lies in not appreciating the true scope and meaning of the aforestated sentence, as a consequence of which the Supreme Court has held that it is open for an accused (or even a fugitive) to simply ‘appear’ before the High Court or the Sessions Court and seek bail under Section 439 of the Code of Criminal Procedure, 1973 (“the Code”) which mandatorily requires the applicant to be in ‘custody’.

While there is no dispute regarding the judgment in Bafna being a progressive one, which endeavours to alleviate the misery of persons accused of heinous offences by not subjecting them to ‘compulsory’ jail before moving an application for bail; it is, however, concerning that the judgment attempts to locate ‘inherent powers’ of the superior courts in the ‘procedure established by law’. 3 It is submitted that the judicial intent is indeed laudable, but does not seem to be grounded in the statutory provisions.

In this article, I argue that the judgment rendered by the Supreme Court in Bafna is erroneous. After setting out the facts in brief, I argue that the Supreme Court has failed to appreciate the scope of a magistrate’s jurisdiction which is the court of first instance under the Code and is empowered to regulate custody of an accused. I further argue that far from supporting the premise that an accused directly appear before the Sessions Court and seek bail, the judgment in Niranjan Singh & Anr. v. Prabhakar Rajaram Kharote & Ors.4 (“Niranjan Singh”) reinforces the procedure that an accused person has to appear and surrender before a Magistrate and seek bail from a Magistrate in the first instance.

Brief Facts and Background

The Petitioner, Sundeep Kumar Bafna was accused of manipulating the foundation of ‘A Wing’ of Aftab Manzil, a building in Mumbai that collapsed resulting in death of family members of Respondent No.2, the Complainant. Non-bailable warrant issued against the Petitioner remained non-executed, resulting in issuance of proclamation.⁵ Petitioner’s application for anticipatory bail was rejected by the High Court as well as the Supreme Court; however, the Supreme Court was pleased to grant a limited protection of two weeks to the Petitioner to apply for regular bail. Probably apprehending expiry of two weeks while pursuing the bail applications, the Petitioner chose to apply for bail straight to the High Court, without approaching the Sessions Court or the jurisdictional Magistrate. In fact, the Petitioner did not formally surrender before the trial court, a procedure ubiquitously known and observed by all before applying for regular bail. This fact is significant because of the language used in Section 439 of the Code provides that a bail application is maintainable only when accused is in custody.6 It is also settled law that application under Section 439 of the Code can be made only and only when the accused is in custody.⁷

Therefore, the Supreme Court is correct in observing that in Bafna “A neat legal nodus of ubiquitous manifestation and gravity has arisen before…” ⁸ it, as the Petitioner had straight away approached the High Court and by being ‘present’ in the High Court and consenting to subject himself to the directions of the High Court, he ought to be deemed in ‘custody’.

Before the High Court, the Petitioner had prayed that “the High Court may permit the Petitioner to surrender to its jurisdiction” and secondly, to enlarge him on regular bail under Section 439 of the Code. The High Court had rejected the Petitioner’s application holding that the Petitioner “is required to be arrested or otherwise he has to surrender before the Court which can send him to remand either to the police custody or to the Magisterial custody and this can only be done under Section 167 of Cr. P. C. by the Magistrate and that order cannot be passed at the High Court level.”⁹ Thus, the High Court had dismissed the Petitioner’s bail application on the jurisdictional issue, i.e. since the Petitioner was not in ‘custody’ and the High Court could not accept the Petitioner’s custody, the bail application was not maintainable. In the words of the Supreme Court, the result in law was “that a person seeking regular bail must perforce languish in the custody of the concerned Magistrate under Section 167 Cr. P. C.”10

It is in this backdrop that question arose before the Supreme Court as whether it is permissible for a person to personally appear before the High Court seeking to surrender himself and on the premise that he has subjected himself to the custody of the court, to apply for bail.

   Meaning of ‘Arrest’ and ‘Custody’

One of the earliest cases, where the meanings of the words ‘arrest’ and ‘custody’ has been exhaustively considered is the decision of Full Bench of Madras High Court in Roshan Beevi v. Joint Secretary to Government of Tamil Nadu¹¹. It was, thus summarised by Justice S. Ratnavel Pandian, speaking for the Court that the terms ‘custody’ and ‘arrest’ are not synonymous even though it is true that in every arrest there is a custody, but not vice versa.

While Sections 41 to 44 of the Code deal with arrest, the word ‘arrest’ has not been defined in the Code. The courts have understood the word ‘arrest’ to mean “restraint of a man’s person, obliging him to be obedient to law.”13 Section 46(1) and (2) of the Code, however, suggests that in order to make an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be submission to the custody by word or action.¹⁴ Black’s Law Dictionary defines ‘arrest’ as:

“arrest, n. (14c) 1. A seizure or forcible restraint. 2. The taking or keeping of a person in custody by legal authority, esp. in response to a criminal charge; specif., the apprehension of someone for the purpose of securing the administration of the law, esp. of bringing that person before a court.”¹⁵

Therefore, arrest would imply, firstly, the overt act of seeking submission¹⁶ and secondly, the act of submission, either physically or by words or by being overpowered. However, in the Constitutional direction¹⁷ requiring time bound production of a person arrested before a Magistrate18, implicit is the legal policy that arrest is to be translated into custody as soon as possible. It is relevant to note that once a person is produced before a Magistrate, the Magistrate can either decide to admit the person accused to bail or remand him to custody which could either be custody of the police or judicial custody.19

The word ‘custody’ has also not been defined under the Code. Black’s Law Dictionary defines ‘custody’ as “custody,n. (15c) 1. The care and control of a thing or person for inspection,preservation, or security.”²⁰ Thus, custody not only implies control, but also puts the person in the care of the person/authority. The Supreme Court has rightly explained that:

“Needless to emphasize that the arrest of a person is a condition precedent for taking him into judicial custody thereof. To put it differently, the taking of the person into judicial custody is followed after the arrest of the person concerned by the Magistrate on appearance or surrender…… Though ‘custody’ may amount to an arrest in certain circumstances but not under all circumstances….”²¹

It is significant to note that Section 44 of the Code provides that, “….subject to the provisions herein contained as to bail….. commit the offender to custody…..” Upon interpretation of Section 167 of the Code, it is apparent that the expression ‘in custody’ therefore, is either relatable to custody of the police or custody authorised by the Magistrate, and given that the Magistrate is empowered to put the accused either in the police custody subject to a maximum period of 15 days, or judicial custody, implies that the law regards accused to be under care of a Magistrate whilst he is under the protection of the law for the purposes of investigation or trial. The law further obliges the Magistrate to record reasons for ordering detention of a person.²²

Role of Magistrate under The Code

Section 6 of the Code provides for the hierarchy of courts in addition to the High Court and special courts as under:

• Courts of Session;
• Judicial Magistrates of the First Class and, in any Metropolitan area, Metropolitan Magistrates;
• Judicial Magistrates of the Second Class; and
• Executive Magistrates

Section 15 of the Code provides that every Chief Judicial Magistrate shall be subordinate to the Sessions Judge and every other Judicial Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Judicial Magistrate. It follows that the Code vests the Magistrate with ‘Original Jurisdiction’. ‘Complaint’ is defined as any allegation made orally or in writing to a Magistrate.²³ ‘Inquiry’ as every inquiry, other than a trial, conducted under the Code by a Magistrate or a Court.²⁴ ‘Investigation’is defined as all proceedings under the Code for collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf,25 and unless so authorised a police officer cannot investigate into non-cognizable offences26. ‘Local jurisdiction’ is defined as as the local area within which the Court or Magistrate may exercise all or any of its powers under the Code.²⁷ A police report has been defined as a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173.28 The scheme of definitions suggests that investigation into a case is done by the police under the judicial oversight of the local Magistrate. Police is required to turn up the arrestee or detainee before a magistrate who can pass necessary orders in respect of his custody²⁹.

Detention after the period of 24 hours is to be authorised by the Magistrate who is required to be provided with necessary documents.³⁰ Any further custody is regulated by him for a maximum prescribed period depending upon the nature of the offence.31 Subsequently, the final report is to be submitted to a Magistrate32 and it is a Magistrate who is expected to take cognizance.³³ Thus, it is the Magistrate who sets the criminal proceedings in motion. In fact, during the period of investigation, it is the Magistrate alone who is the competent to authorise detention.

From the aforesaid indicators as also from Section 193 of the Code³⁴, it is rather clear that Magistrate is the court of original jurisdiction in respect of all offences even if triable by Sessions Court, and the Sessions Court cannot exercise jurisdiction unless the case is committed to it in terms of Section 209.³⁵ The Supreme Court has held that “It can be discerned from the hierarchical settings of criminal courts that the Court of Session is given a superior and special status. Hence we think that the legislature would have thoughtfully relieved the Court of Session from the work of performing all the preliminary formalities which Magistrates have to do until the case is committed to the Court of Session.”³⁶ It is therefore submitted that the Code does not contemplate any other court other than a magistrate’s Court to be accepting custody and remanding a person to custody. The powers exercised by the High Court and Sessions Court, as superior Courts, is a special power which by relieving them of preliminary formalities also disables them from exercising power in respect of ‘custody’. Power of Magistrate and Existence of a Legal Vacuum

Power of Magistrate and Existence of a Legal Vacuum

In Bafna, the Supreme Court has held that:

“Furthermore, it is incongruent that in the face of the Magistrate being virtually disempowered to grant bail in the event of detention or arrest without warrant of any person accused of or suspected of the commission of any non-bailable offence punishable by death or imprisonment for life, no Court is enabled to extend him succour. Like the science of physics, law also abhors the existence of a vacuum, as is adequately adumbrated by the common law maxim, viz. ‘where there is a right there is a remedy’….. The difference of language manifests the sublime differentiation in the two provisions, and, therefore, there is no justification in giving the word ‘custody’ the same or closely similar meaning and content as arrest or detention”37

It is submitted that the aforestated conclusion reached by the Supreme Court that there exists a legal vacuum as the Magistrate is virtually disempowered to grant bail to persons accused of commission of offences punishable by death or imprisonment for life is not entirely correct for the reasons set out below.

An accused has a legal right to apply for bail under Section 437 of the Code exists whenever the accused person is brought before the Magistrate. Section 437 of the Code contemplates two jurisdictional conditionals to be fulfilled:

Firstly,

• a person must be accused of the commission of any non-bailable office; OR,
  • a person must be suspected of the commission of any non-bailable offence;

Secondly,

the must be brought before the Magistrate in fulfilment of Article 22(2) of the Constitution read with Section 57 of the Code ; OR,

such a person must be arrested or detained without warrant by a police officer; OR, the accused may have been reanded by the Magistrate under Section 167 of the Code but upon the expiry of 15 days or the period fixed by the Magistrate is brought before the Court; OR,

• the accused appears pursuant to a summons or a warrant of arrest issued by the Magistrate.

In all the above cases, the accused is strictly before the Magistrate as a result of the control exercised by the Magistrate and it is in respect of such cases that he can be released on bail.

The observations of the Supreme Court regarding existence of a vacuum are premised on the submissions of the accused who had contended before the Supreme Court that since the offence for which he was charged fell in the category of offence covered under Section 437(1)(i)³⁸, the Magistrate was disabled from even considering the issue. It is respectfully submitted that the contention is not tenable. Section 437(1)(i) of the Code provides that if there appears reasonable grounds for believing that the accused has been guilty of committing such offence punishable with death or imprisonment for life shall not be released. Therefore, a Magistrate is enabled by the Code to exercise his judicial mind to examine if there are reasonable grounds for believing that the accused has been guilty of committing such offence. In Gurcharan Singh v. State (Delhi Admn.)39 (“Gurcharan Singh”), the Supreme Court has held that:

“22…It is also clear that when an accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to Section 437(1) CrPC and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extraordinary occasion since there will be some material at the stage of initial arrest, for the accusation or for strong suspicion of commission by the person of such an offence.”

It is clear from the above quote extract that a Magistrate is not altogether disabled from exercising of jurisdiction, contrary to the findings of the Supreme Court. In fact, notwithstanding the limited restriction on exercise of jurisdiction under Section 437(1)(i), a magistrate can still grant bail if the accused is a woman or below 16 years of age or is sick or is infirm. Given that restriction imposed by Section 437(1) is relaxed by a further proviso, it necessarily follows that there is no absolute legislative vacuum as has been held by the Supreme Court in Bafna but a conscious legislative policy. It must further be understood that for a Magistrate to determine whether the accused is a woman or a child under 16 years of age or is sick or infirm, the accused would have to apply for and make himself available in the custody of the Magistrate court. The Magistrate is the court of first instance, and it is the Magistrate alone⁴⁰ that is empowered to regulate custody in the first instance41 in all categories of cases42. Section 439 of the Code confers ‘special powers’ upon the High Court and the Sessions Court, but does not either recognize the absence of power of a Magistrate or dwindle the power of a Magistrate under Section 437 of the Code. It is submitted that the jurisdiction of the Court of Session and the High Court under Section 439 is ‘co- extensive’ with that of the Magistrate under Section 437 of the Code⁴³ which is also evident by presence of sub-section (2) of Section 439 which provides for cancellation of bail granted under “this Chapter”. Whereas, Section 437 of the Code contemplates only ‘arrest’, ‘detention’ and ‘brought before a Court’, Section 439 is attracted when the accused is in ‘custody’.⁴⁴ It can be well be stated that Parliament’s use of different phrases is not without any consequence, and it is intended that one will approach the Sessions Court or the High Court only after having approached a magistrate.45

Regard may also be had to Section 438(1B)46 of the Code and Section 438(4) of the Code47 which provide that upon application of the public prosecutor the Court may direct (physical)⁴⁸ presence of the accused at the time of final hearing. Hence, the word ‘custody’ appearing in Section 439 of the Code cannot be equated with mere ‘presence’ as contemplated under Section 438 of the Code, which is the effect of the judgment in Bafna as it permits the accused to be present before a High Court or a Sessions Court and request the court to ‘accept’ its custody.

  Scope of Magistrate’s Jurisdiction to Grant Bail

It is submitted that an accused in the first instance is to be brought before a Magistrate who, irrespective of the nature of offence committed, regulates his custody until the committal takes place under Section 209 of the Code. Even if a case is triable by Sessions, the Magistrate has complete jurisdiction over the case. The Magistrate takes cognizance in the first instance under Section 190, directs the supply of the chargesheet, the First Information Report and other relevant documents in compliance with Section 207 and 208 of the Code and then proceeds to perform the act of committal under Section 209 of the Code. It is irreconcilable with scheme of the Code to say that any judicial officer vested with judicial powers has to act only as a ‘post box’ and is barred from applying its mind to the case.

In fact, there are 12 such offences under the Indian Penal Code49, which even though punishable with imprisonment for life are triable by Magistrate and therefore, there is no general bar that the Magistrate cannot deal with ‘a heinous crime’, and it is untenable to content that in respect of ‘heinous crimes’ the Magistrate is merely a ‘post-box’.

It may be that the law does not empower the judicial officer to exercise his discretion in certain situations, but even then the judicial officer will need to apply his mind to see whether the situation or the case before him falls in that category of cases in which he is not permitted to exercise discretion by law. In Sanjay Narhar Malshe v. State of Maharashtra⁵⁰, the Hon’ble Bombay High Court held that:-

“… Nevertheless the fact remains that there is no total prohibition against grant of bail merely because a person is accused of commission of offence of serious nature. Besides, if we peruse Section 209 of the Code which deals with the committal proceedings, it is apparent that even in the course of the committal proceedings there is no bar imposed upon the powers of Magistrate in the matter of grant or refusal of bail. Clause (b) of Section 209 clearly provides that while dealing with the accused persons appearing and brought before the Magistrate having committed the matter as the same is triable exclusively by the Court of Sessions, while the Magistrate is enjoined to commit the proceedings to the Court of Sessions or the Special Court constituted under any special statute, the accused may be remanded to the custody until such committal proceedings are complete, subject to the provisions of the Code relating to the bail. In other words while the Magistrate is empowered to remand the accused to the custody until the conclusion of the committal proceedings, that is to say, till the proceedings are placed before the Court of Sessions or the Special Court, as the case may be, the powers of the Magistrate either to grant the bail if asked for or to refuse the same are not restricted in any manner.”

Similar view has been taken by Allahabad High Court in Ram Bharoshi v. State of U.P.⁵¹

wherein it has been held that:

“13. It is imperative that the Judicial Magistrates give up the negative tendency to treat an application for bail in a sessions triable case as an ‘untouchable’ subject, and to consider and even grant bail, if a case for bail is made out on merits, in the light of settled principles granting bail, in those cases where the Code of Criminal Procedure has not prohibited grant of bails by the Magistrates.

15. The result of this unhealthy practice is that a person against whom an F.I.R. is lodged relating to any Sessions triable offence, which on a plain reading appears to be a case of false or malicious prosecution, uncorroborated by any independent material, the accused is left at the mercy of the police, in whose favour the Magistrate has virtually abdicated his jurisdiction. An accused may have to remain in jail for some time before his bail application is heard and granted by the Sessions Court, after the Magistrate’s routine rejection of his prayer for bail even in those minor Sessions triable offences where there may be no need for taking an accused in custody for the purpose of investigation, or where palpably he appears to have been implicated falsely, and there are no other attendant circumstances disentitling the accused from an order of bail.”

The aforesaid judgment reiterates and develops the view taken by the Allahabad High Court in Vijay Kumar & Ors v. State of U.P. & Ors.⁵² Similar view has been taken by Kerala High Court in Shanu v. State of Kerala53.

In fact, even at the stage of committal, it is clear that for the purposes of committal the accused has to be produced before a Magistrate and at that stage the Magistrate can either remand the accused to custody until committal has been made, or remand the accused to custody until the conclusion of the trial, but the same is subject to the provisions of the Code relating to bail. Thus, even at the stage of committal, it is open for an accused person to apply for bail before the committing Magistrate and the Magistrate, in a fit case, is empowered to consider and grant bail to the accused. In fact, a Magistrate exercises control over remand even after a charge-sheet is filed and the trial has commenced by virtue of Section 309(2) of the Code⁵⁴.

    Surrendering before the High Court

In Bafna, while the Bombay High Court rejected the Petitioner’s bail application on the ground that it had no jurisdiction to accept the custody of the accused, the Supreme Court directed the High Court to accept the custody and decide the bail application on merits, on the basis that “no provision categorically prohibits the production of an accused before either of these Courts”. The Supreme Court further strengthened its reasoning that as the Magistrate is prohibited from considering and granting bail to a person accused of committing a non-bailable offence punishable with death or imprisonment for life or seven years or more55, there has to be some court which grant bail to an accused in the first instance without the accused having to languish in custody. And, in absence of a specific bar upon exercise of jurisdiction by the High Court or the Supreme Court, such a power can be exercised by the High Court or the Supreme Court. The Supreme Court reasoned that “…while Section 437 severally curtails the power of the Magistrate to grant bail in context of the commission of non-bailable offences punishable death or imprisonment for life, the two higher Courts have only the procedural requirement of giving notice of the Bail application to the public prosecutor….”56 It is submitted that such an interpretation is not legally sustainable.

It is submitted that the Code contemplates that matters of custody in the first instance are to be decided by a Magistrate and not by the Sessions or the High Court. In respect of bail application under Section 439 of the Code, where the High Court and the Sessions Court enjoy concurrent jurisdiction, it has been held that that “since the High Courts enjoy concurrent jurisdiction it would be a salutary practice to direct the petitioners to approach the Sessions Judge first, but that would remain a self-imposed constraint, akin to the exercise of the extraordinary jurisdiction reposed in it by virtue of Article 226 of the Constitution”⁵⁷.

The Supreme Court has held in Gurcharan Singh⁵⁸, that “… Under the new as well as the old Code an accused after being arrested is produced before the Court of a Magistrate. There is no provision in the Code whereby the accused is for the first time produced after initial arrest before the Court of Session or before the High Court…” It is submitted that if the Code does not contemplate production of an accused before the High Court or the Sessions Court for the first time⁵⁹, it follows that the Code does not also contemplate a situation where the accused would himself appear before the High Court and seek that he be taken into custody and be released on bail under Section 439(1) of the Code. The accused in the instant case, who was also a proclaimed offender, ought to have appeared before a Magistrate and surrendered in the first instance.

In fact, the practice of surrendering before the Court of Sessions and the High Court has been deprecated by several High Courts. In Basanta Sahu v. Padma Charan Sahu,⁶⁰ the Orissa High Court has held that :

“We deprecate the practice which is developing in some quarters of seeking bail under Section 439, Cr.P.C from the learned Sessions Judge in proceedings Under Section 488, Cr. P.C. by-passing the Magistrate who should ordinarily deal with the matter as the Court of first instance. Since under the procedure, the Magistrate is to be approached first, by-passing him should not be encouraged.”

In Seroman Singh v. State of U.P.⁶¹, after having considered Niranjan Singh, the Allahabad High Court held that there is no provision in the Code allowing the accused to surrender before the High Court.

“…The High Court, apart from the fact that there is no provision for surrender in the scheme of the Code of Criminal Procedure before the High Court, the High Court after accepting the surrender cannot remand the accused to custody…”⁶²

Thus, for the sake of argument even if one assumes that the High Court has not been disabled by law to accept the custody , and the High Court accepts the custody of the accused but rejects the bail application, then in that situation the High Court is powerless under the Code to remand the accused to custody as the said power is exercisable by Magistrate. It follows that the conclusion reached by the Supreme Court in Bafna is not the correct position in law.

Attention is also drawn to Basheer v. State of Karntaka63, wherein the accused relied on Bafna and attempted to surrender before the High Court. However, the High Court dismissed the Bail Application and directed the accused to surrender before Sessions Court and seek bail. The Karnataka High Court reasoned that:

“5. There is no gain saying about the proposition enunciated by the Apex Court in the above case. The petitioners are not showing the special circumstance for not working out their remedy at the preliminary level before approaching this court, I am of the considered opinion that instead of disposing of this case on merits, it shall be adjudicated by the concerned court itself ”.

It appears that the High Court have begun to ‘balance’ the law laid down by the Supreme Court in Bafna by requiring ‘special circumstance’ to be pleaded. Similar view was taken by Karnataka High Court in Malappa v. State of Karnataka64 and Delhi High Court in Dilip Kumar v. State of Haryana65. Some other accused have relied upon Bafna to seek permission to surrender before the Sessions Court.⁶⁶ However, the Bombay High Court in Aihaana Acharya Sharma v. State of Maharashtra⁶⁷ accepted the custody of the accused and considered the bail application on merits.

    Law in Niranjan Singh

Much reliance was placed by the Petitioner and the Supreme Court on the decision of the Supreme Court in Niranjan Singh⁶⁸ wherein Krishnya Iyer, J., in his inimitable style had held that:

“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 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.

• 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.
• 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 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.”
• It was on the basis of the aforesaid paragraphs, particularly, paragraph 8, that the Petitioner accused had argued before the Supreme Court that by being physically present before the High Court and requesting the High Court to take him into custody, the accused had fulfilled the condition of being in ‘custody’ in terms of jurisdictional requirement of Section 439(1) of the Code. Even in passing the judgment in Bafna, the Supreme Court relied on Niranjan Singh. It is submitted that reliance placed by the Supreme Court was erroneous. In fact, Niranjan Singh furthers the case that the High Court ought not to have accepted the Petitioner’s custody as there was no remand or other order passed by the court of first instance, i.e. a Magistrate.
• It is respectfully submitted that in Niranjan Singh, there was a private complaint which was lodged alleging that two Sub-Inspectors and eight Constables of Ahmednagar City Police Station had murdered the brother of the complainant when he was proceeding to Shirdi. As State had taken no action, a private complaint was lodged by brother of the deceased who was an advocate. An enquiry was ordered by the Magistrate under Section 202 of the Code and he took oral evidence of witnesses. The Learned Magistrate found that there are sufficient grounds to proceed against all the accused for the offences under Sections 302, 323, 342 read with Section 34 of the Indian Penal Code. Thus, process was issued under Section 204 of the Code and non-bailable warrants of arrest were issued as process to secure the presence of the accused persons. The accused persons applied for bail before the Magistrate. The application for bail before the Magistrate, was obviously relatable to Section 437 of the Code which implied that they had appeared and were in ‘custody’ at the time of seeking bail fulfilling the pre-conditions of Section 437 of the Code. The application for bail was rejected by the Magistrate, who did not compel that the accused person should surrender (which is the natural consequence of rejection of bail application under Section 437 of the Code). The Magistrate, however, stayed the issuance of arrest warrants enabling the accused persons to move to the Sessions Court under Section 439(1) of the Code.
• It is submitted that when a person applies for bail under Section 439 of the Code before the Court of Session after the application for bail is rejected under Section 437 of the Code, he is necessarily subjecting himself to a possible direction of being remanded to custody (or restrain/detention) and that is why this Hon’ble Court held that the accused had appeared and surrendered before the Sessions Judge. Thus, contrary to the facts in Bafna, the condition of appearance before the Magistrate (pursuant to the process) in the first instance was satisfied in Niranjan Singh, and consequently the condition of appearance before the Sessions Judge to enable a direction to be suffered for being taken into custody was equally satisfied. It is trite law that even when a person is enlarged on bail he is deemed to be in custody, notionally. Thus, even while the stay granted by the Magistrate operated, the accused persons in Niranjan Singh, it could be argued remained in ‘custody’. Merely because the accused policemen had not been physically detained would not change the legal effect of appearing before a Magistrate and applying for bail. Regard may be had to paragraph 9 of the Niranjan Singh, wherein the Supreme Court held that:
• “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…..”
• Hence, having submitted to directions of the Magistrate Court, enabling the accused to approach the Sessions Court, the accused can well be deemed to be in custody. It is also submitted that in fact, the Magistrate, upon recording of the evidence came to the conclusion that offence punishable with life or death sentence was disclosed and legally all the Magistrate could have done was to reject the bail application in view of the specific bar under Section 437(1). The observation by the Supreme Court in paragraph 9 that the Magistrate “enabled the accused persons to circumvent the principle of Section 439 Cr.
• P. C.” also reaffirms the conclusion. It is submitted that the said judgement on the contrary, overemphasised the mandatory nature of the requirement under Section 439(1) of the Code of being ‘in custody’. It is pertinent to mention that Niranjan Singh was decided upon its own facts⁶⁹ and does not notice the previous judgment in Gurcharan Singh.

Conclusion

‘Court’ is an agency created pursuant to sovereign powers for the purposes of administering justice in accordance with law. An advantage of dispensing justice in ‘accordance with law’, i.e. the procedure regulating the conduct of proceedings is the promise of equal treatment that is implicit in it. This promise of equal treatment brings about certainty and predictability, which form the nucleus rule of law. Therefore, while the judgment in Bafna is a progressive judgment in so far as civil liberties are concerned, but it falls short of expectation when judgment from the vantage point of justice in accordance with law and the right of prosecution to have custody over an accused. The judgment may result in tilting the balance in favour of the accused, always wanting to escape the custody. It also results in divesting of power from the Magistrate, especially at time when the High Court and the Sessions Court are burgeoning with case-load.