The Authors, Gaurav Thote and Niranjan Mundargi are Advocates practising in the Bombay High Court.
Article 21 of the Constitution of India states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The words “personal liberty” and “procedure established by law” play a crucial role in matters of bail. It is a common perception that a person seeking bail under Sections 436-439 of the Criminal Procedure Code (“CrPC”) (excluding Section 438 as it deals with Anticipatory Bail) ought to be in police or judicial custody i.e. jail for the Court to consider such plea. It is another notion that a person surrendering to seek bail in a non-bailable offence must necessarily surrender before the Magistrate as it is only the Magistrate who can remand an Accused to custody under Section 167 of CrPC. This Article revisits the landmark decision of Niranjan Singh v. Prabhakar Kharote which set a new precedent in bail jurisprudence while elucidating the concept of “custody” in matters of bail.
STATUTORY PROVISIONS
Sections 436 to 439 of the CrPC, deal with the provisions of bail and empower authorities to grant bail to a person accused of an offence.
Section 436 of Cr.P.C states-
“When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a Police Station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail.”
Section 437 of Cr.P.C states-
“When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Sessions, he may be released on bail, but such person shall not be released on bail if there appear reasonable grounds for believing that he/she has been guilty of an offence punishable with death or imprisonment for life or such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non- bailable and cognizable offence. ”
Section 438 of CrPC empowers the High Court/Court of Sessions to grant Anticipatory Bail to a person apprehending arrest on an accusation of committing a non-bailable offence.
Section 439 of CrPC empowers the High Court/Court of Sessions to direct an accused person in custody to be released on bail.
Elucidating the term “custody”:
In Niranjan Singh v. Prabhakar Kharote[i], the Apex Court was dealing with a heinous murder case wherein the Magistrate, while refusing to grant bail to the Accused Police Officers, stayed the order denying bail, which enabled the accused to approach the Court of Sessions for seeking bail. The Sessions Judge acceded their request to surrender and subsequently allowed their bail pleas. The aggrieved Complainant sought to challenge the bail order in the High Court which, however, was not entertained. The primary arguments canvassed by the Complainant-Petitioner before the Supreme Court were:
- That the condition precedent for considering a plea of bail was that the accused ought to be in “custody”. This basic condition was not fulfilled while considering the plea, as the Respondents/Accused were not in “jail”.
- That the direction of the magistrate to stay his own order of rejecting bail was wholly irregular which circumvented the principle of Section 439 of the CrPC, thereby enabling the accused to approach the Sessions Court for grant of bail.
Justice Krishna Iyer (speaking for the Supreme Court) put forth a critical view adopted by the concerned Magistrate as regards the procedure adopted by him, however, observing -
“Custody, in the context of S.439 (we are not, be it noted, dealing with anticipatory bail under S.438) is physical control or an 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 S.439 Cr.P.C. 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.”
INTERPRETING THE DECISION VIS-À-VIS “REMAND PROCEEDINGS”
In Balkrishna Raul v. Manik Jagtap[ii], the Bombay High Court was dealing with a matter wherein the anticipatory bail plea of accused was disposed of by the High Court with liberty to surrender and apply for regular bail before the concerned Court having jurisdiction. Pursuant to the liberty, the accused surrendered before the Sessions Court as the offences were exclusively triable by the Sessions Court and obtained regular bail. The Complainant challenged this order contending that the appropriate Court was the Magistrate Court where remand proceedings were to commence, and the Sessions court could not have entertained the bail application of accused. While negating the contention of the Complainant, the single-judge-bench validated the dictum in Niranjan Singh(supra) and held-
“In my opinion, however, there is no substance in the submission canvassed on behalf of the Applicant before this Court. For, after this Court granted liberty to the Respondent No. 1 to surrender before the appropriate Court and apply for regular bail, if so advised, the Respondent No. 1 became liable to surrender before the Court before his prayer for bail could be considered. That does not mean that the Respondent No. 1 was obliged to surrender before the Court of J.M.F.C. and could not have surrendered before the Court of Sessions, Raigad at Alibag, which, indeed, was the Court competent to entertain the bail application in respect of the offences, which was punishable with imprisonment for life.”
In Sundeep Kumar Bafna v. State of Maharashtra[iii], the Apex Court overturned a decision of the Bombay High Court, wherein the High Court declined to entertain the plea of accused to surrender before it for the purpose of considering his bail application, observing that it was the Magistrate whose jurisdiction had to necessarily be invoked and not that of the High Court or the Sessions Judge as the plea to surrender, if accepted, would essentially assume the applicant to be in its custody. Any Court other than a Magistrate was devoid of jurisdiction to remand the accused to custody under Section 167 of CrPC which would intrinsically deprive the Police of seeking his custody. Reiterating the dictum laid down in Niranjan Singh (supra), the Apex Court set aside this view observing-
“23. Learned State counsel submits that the High Court in exercise of powers under Section 482 can convert the nature of custody from police custody to judicial custody and vice versa but cannot pass an Order of first remanding to custody. Therefore, the only avenue open to the accused is to appear before the Magistrate who is empowered under Section 167 CrPC. Thereupon, the Magistrate can order for police custody or judicial custody or enlarge him on bail. On behalf of the State, it is contended that if accused persons are permitted to surrender to the High Court, it is capable of having, if not a disastrous, certainly a deleterious effect on investigations and shall open up the flood gates for accused persons to make strategies by keeping themselves away from the investigating agencies for months on end. The argument continues that in this manner absconding accused in several sensitive cases, affecting the security of the nation or the economy of the country, would take advantage of such an interpretation of law and get away from the clutches of the investigating officer. We are not impressed by the arguments articulated by learned Senior Counsel for the Complainant or informant because it is axiomatic that any infraction or inroad to the freedom of an individual is possible only by some clear unequivocal and unambiguous procedure known to law.
26. In conclusion, therefore, we are of the opinion that the learned Single Judge erred in law in holding that he was devoid of jurisdiction so far as the application presented to him by the Appellant before us was concerned. Conceptually, he could have declined to accept the prayer to surrender to the Courts’ custody, although, we are presently not aware of any reason for this option to be exercised. Once the prayer for surrender is accepted, the Appellant before us would come into the custody of the Court within the contemplation of Section 439 CrPC. The Sessions Court as well as the High Court, both of which exercised concurrent powers under Section 439, would then have to venture to the merits of the matter so as to decide whether the applicant/Appellant had shown sufficient reason or grounds for being enlarged on bail.”
CONCLUSION-
The dictum laid down in Niranjan Singh v. Prabhakar Kharote set a new precedent in bail jurisprudence which was subsequently interpreted vis-à-vis “remand proceedings” as well. The bar contemplated under Section 437 of Cr.P.C., takes away the powers of a Magistrate to grant bail in certain serious offences. In such situations, only the High Court/Court of Sessions would be empowered to entertain the bail plea of such accused person/s under Section 439 of Cr.P.C. Thus, a person accused of a non-bailable offence could surrender before such Court having jurisdiction to seek bail and not necessarily before a Magistrate. An accused physically appearing before the concerned Court having jurisdiction, for the purpose of seeking bail, would be in deemed custody of that Court which would give sufficient jurisdiction to that Court to entertain his request for bail.
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